177 Livingston Street 7th Floor Brooklyn, NY 11201 (718) 254-0700 info@bds.org

Testimony

BDS TESTIFIES BEFORE NYC COMMITTEE ON HOSPITALS, COMMITTEE ON MENTAL HEALTH, DISABILITIES AND ADDICTION AND COMMITTEE ON CRIMINAL JUSTICE OVERSIGHT HEARING ON CORRECTIONAL HEALTH

TESTIMONY OF: 

Brooke Menschel

BROOKLYN DEFENDER SERVICES

Presented Before 

The New York City Council Committee on Hospitals, Committee on Mental Health, Disabilities and Addiction and Committee on Criminal Justice

Oversight Hearing on Correctional Health

November 15, 2018

My name is Brooke Menschel and I am the Civil Rights Counsel for Brooklyn Defender Services. BDS provides comprehensive public defense services to nearly 35,000 people each year, thousands of whom are detained or incarcerated in City jails in connection with their criminal cases. Thank you for the opportunity to address the Council and share with you some of our concerns about medical and mental health care, based on the direct accounts of people we represent who are incarcerated in City jails.

Across the country, jails and prisons have become the largest provider of health care, including mental health care. New York City is no exception.  Tens of thousands of people pass through our City’s jails each year, many of whom have acute health needs or are otherwise especially vulnerable. A 2009 National Institutes of Health study noted that chronic conditions—including HIV and diabetes—are more prevalent among incarcerated people than in the general population.[1] These individuals frequently end up incarcerated specifically because they cannot access adequate care on the streets. Once a person is incarcerated, providing adequate care is no longer a choice: the City is obligated to ensure that adequate medical and mental health care is readily accessible. When they are ultimately released after any period of time, the City must ensure they can access care in their communities. The alternative is a vicious cycle that fuels problematic behavior in our communities and the NYC Department of Corrections remaining one of the largest medical and mental health care providers in the country for years to come.

The problem posed by lack of access to medical and mental health care in our City’s jails is part of a continuum that starts long before people enter the criminal justice system and extends far beyond their discharge. Disparities in healthcare options and outcomes disproportionately impact poor communities and communities of color, resulting in disproportionately high rates of chronic conditions. Similarly, inadequate community-based mental health and substance use treatment funnel people struggling with mental illness into handcuffs, jails and prisons. For these individuals, time in City jails frequently exacerbates their conditions, as illness and medical needs are all too often met with violence and isolation rather than appropriate care. After serving time in jail or prison, people who return to their communities frequently lack adequate healthcare infrastructure and affordable and supportive resources. These inadequacies lead to people falling through the cracks and too often tragic results – either irreversible sickness and death or the churning cycle of incarceration, lapses in treatment, homelessness, and recidivism.[2]

Mr. F  suffers from paranoid schizophrenia that was not adequately controlled. While incarcerated, Mr. F decompensated further and began experiencing confrontations with custody staff, many of whom, lacking adequate training to de-escalate incidents involving individuals in his mental state, responded aggressively to Mr. F. During his incarceration, Mr. F received numerous infractions, lost various privileges, and spent several months in the solitary unit for people with mental illness at the George R. Vierno Center (GVRC) on Rikers Island. This isolation caused Mr. F to decompensate further. Eventually, Mr. F’s condition worsened and he was transferred into another isolation unit, this one for people with mental illness and deemed violent. There, Mr. F was isolated further and experienced worsening depression, anxiety, anger, lethargy, loss of appetite, frustration, hopelessness, insomnia, physical pain, and hallucinations associated with his schizophrenia. In no small part due to his prolonged isolation, Mr. F decompensated so profoundly that he was eventually found unfit to proceed in his criminal case and had to be hospitalized in order for him to advance his case. What is the purpose of pre-trial detention if not to ensure people make it to court?

As you consider how best to advance correctional health in New York City, we urge you to view access to care in jails and prisons in the context of the larger continuum. Decarceration while investing in healthy communities will result in a safer, healthier society that will benefit not only the people we represent but the community at large.

Access to care has long been and remains a fundamental concern for our clients.[3] In a correctional setting, our clients’ access to medical and mental health treatment is frequently hamstrung by distinct but interconnected issues: DOC practices, ostensibly in the interest of security, often come at the expense of access to care for clients in need; Physical design and staffing resources often impede clients’ ability to readily access the treatment they require; and administrative hurdles frequently hamper clients in their attempt to access indicated medical or mental health services. We voice our support for the comments of directly impacted individuals and other organizations that are testifying today, including The Sylvia Rivera Law Project, The Legal Aid Society, and the Urban Justice Center. They each offer tremendous insight and expertise regarding the current state of affairs for clients incarcerated in New York City.

Access to Care as a Linchpin to Improving Security

Contrary to the assertions of DOC staff that security and access to care must be balanced, we strongly believe that the latter is essential to the former.

From protecting public safety to fighting disease and promoting physical and behavioral health, and from fine-tuning budgets that trim waste to investing in cost-effective programming with long-term payoffs, the health care that prisons provide to incarcerated individuals and the care that prisons facilitate post-release is a critical linchpin with far-reaching implications.[4]

The two central goals must coexist to ensure a safe, healthy, and effective system. Unfortunately, far too often our clients’ mental health or medical needs take a backseat, allegedly because of DOC’s security mission. Correctional staff regularly serve as an impediment, rather than a conduit, to care. Security alerts and classifications frequently interfere with access to vital treatment and services. Mental health and medical practitioners are stymied by security guidelines when providing indicated treatment.

Correctional Staff as Gatekeepers

Correctional officers serve in many respects as gatekeepers to medical and mental health care. Without the requisite knowledge or training, officers who block access to care pose serious dangers to the well-being of people in custody. For instance, to access medical care in a DOC facility, an individual must submit a “sick call” request to officers in their housing unit, who are responsible for forwarding requests to medical staff. Under this arrangement, correctional staff can and do fail to forward sick call requests to the medical staff, or falsely claim that an individual “refused” to be brought to their appointment, as a tool of control or punishment. Our clients have been denied sick call in retaliation for complaining about correctional staff, in response to misbehavior, and in an effort to ostracize those with high profile cases.

One BDS client who had filed complaints against correctional staff was repeatedly denied sick call as well as escorts to the medical clinic. Although he attempted to access care, correctional staff documented that he “refused” care. As a result of being denied timely medical treatment for a cut, the client developed gangrene which nearly required amputation. Denying access to medical care is a particularly cruel form of punishment that nearly cost a man his limb in this case.

Regular and accurate reporting on the availability of sick call requests in an important step to making the system function better. BDS supports Int. No 1236 and the Council’s continued support for data collection. Information pertaining to sick call is vital to understanding lapse in care and access to services for our clients. In addition to the information already required by the legislation, we urge the Council to require reporting on the “reason why sick call was not completed” and allow for a qualitative approach to why a person was not able to make it to an appointment. Far too often our clients’ records reflect that they “refused” care because they were in court, visiting with family, or were never told of a medical appointment. These refusals impact our clients, who are then painted as malingering, lying or attention seeking.

Lockdowns Preventing Care

Similarly, correctional staff regularly delay or entirely prevent access to care for entire units allegedly in the name of security. For example, movement is frequently halted when a facility goes on lockdown, sometimes for extended periods. In its January 8, 2018 report on lockdowns, the Board of Correction revealed that, “Despite a 32% decrease in the DOC average daily population (ADP) since 2008, there has been an 88% increase in lockdowns.” The Board found that lockdowns often result in violations of BOC’s Minimum Standards. During lockdowns, people are confined to their cells and generally denied any and all access to programs and services. They cannot go outside for recreation, shower, use telephones or law libraries, access religious services, attend school, or receive family or counsel visits. They are often denied medical care, including mental health care. Some clients have reported being denied toilet tissue. Missed counsel visits can require cases to be adjourned, prolonging pre-trial detention. Missed mental health treatment can result in the rapid decompensation of vulnerable people. Lockdowns amount to group punishment, with little regard to the rights or needs of people in its custody.

Limitations on Treatment as a Punishment

All too often, individuals incarcerated in City jails are denied the opportunity to access particular programs or treatment because of high security classifications, housing placements, or disciplinary consequences. These programs, which serve as powerful evidence that a person is productive, engaged and wants to participate in their own defense and well-being, are all-too-often unavailable to our clients because of alleged security concerns. One glaring example is drug treatment programs, which include a critical flaw. Broad groups of people are denied access to important programs that support people with substance use disorders because they are classified as high security by DOC or as a result of unsubstantiated gang allegations, based on no standard of evidence and with no meaningful opportunity to appeal. For instance, the substance use treatment program “A Road Not Taken” provides a supportive environment for people struggling with addiction who are housed among peers and participate in extensive programming.[5] Yet individuals identified by DOC as high classification are ineligible to participate.

In a recent case, one BDS criminal defense attorney successfully advocated that her client, who had a history of substance use, would serve reduced jail time if he participated in the ARNT program. Despite agreement of the client’s parole officer and the District Attorney, the attorney learned from Correctional Health Services that the client was denied entry into the program because of his high classification, the result of a 2007 incarceration where DOC identified him as gang affiliated. Although the client was not in a gang and was fully committed to participating in the program and turning his life around, he was not able to move forward with the agreement because of the classification.

Participation in these programs can and does impact people’s ability to fight criminal cases in court, helping them overcome disorders, participating more effectively in their own defense, and in demonstrating to the court their commitment to change. Correctional Health Services should make their programming available to all who may benefit medically, regardless of classification or sentence. Situating access to treatment and medical decision-making as the exclusive domain of healthcare providers, not DOC, is essential.

Likewise, BDS supports Res. No. 581 and encourages the City Council to support expanded treatment for people in our jails and prisons. Although the Key Extended Entry Program (KEEP) facilitates detox and manages methadone treatment for people with opioid dependency in New York City jails, people facing state prison time are excluded from the program. State prisons, which do not offer currently offer methadone management, should expand their program to include methadone treatment and other medication assisted treatment (MAT) as an important step towards creating healthier communities. In this era of skyrocketing opioid overdose deaths, research has shown that MAT can cut the mortality rate among addiction patients by a half or more.[6] Further, many people facing state prison time “on paper” will likely never be sent to state prison once the case reaches sentencing. Even though the parties may all be aware that prison time is unlikely, prosecutors often wait until pleas are entered to withdraw the most serious charge. One collateral consequence of this practice is that many people who need methadone treatment are excluded from KEEP. More honest prosecutorial practices would benefit public safety, as people maintained on methadone are more likely to continue treatment in the community and avoid relapse. MAT in jails and prisons and other public health approaches to addressing opiate addiction should be expanded across jurisdictions, according to best practices of community-based healthcare.

Relatedly, we are concerned about the knee-jerk embrace of Vivitrol among corrections officials as an alternative treatment for opiate addiction. We urge the City to confront addiction issues by tackling the root causes that lead people to use drugs in the first place – poverty, trauma, desperation, and other factors. We urge the state to maintain a critical perspective on drugs peddled as a “magic bullet” for addiction. Rather, we support committing greater resources to treatments that have been subjected to adequate study and been found to sustainably manage opiate addiction, prevent overdoses and improve public health.[7]

Medical Complications Due to Staff Brutality and Disciplinary Consequences

BDS is equally troubled by the frequent and persistent use of disciplinary mechanisms that cause significant medical and mental health complications. For example, DOC exposes our clients to pepper spray indiscriminately, without provocation, and without regard to the medical ramifications of exposure.

One officer flew into a rage during a verbal disagreement with a young BDS client. Despite no physical threat to the officer or others, the officer unleashed her MK9 pepper spray as she chased our client through the mess hall, dousing everyone else in the area. The excessive pepper spray triggered a severe asthma attack which left our client coughing up blood. He was taken to intake where he waited several hours before receiving medical care. The incident likely sent many bystanders to the clinic as well.

Similarly, any use of restrictive housing poses serious, and lasting, dangers to our clients’ health and, in turn, their communities. Physiological conditions brought on by locking a person in a cell for 23-24 hours a day include gastrointestinal and urinary issues, deterioration of eyesight, lethargy, chronic exhaustion, headaches and heart palpitations among others.[8] The psychological trauma, including severe depression, anxiety, insomnia, confusion, emotional deterioration, and fear of impending emotional breakdown, is broadly recognized.[9] In addition to hallucinations and delusions,[10] studies consistently find that prolonged solitary induces bouts of extreme anger and diminished impulse control, leading to violent outbursts;[11] invoking the very behavior it purports to manage.

A 2014 study revealed that people subjected to solitary confinement in New York City jails were 6.9 times more likely to engage in acts of self-harm than those who were not.[12] The suicide rate in DOCCS’ Special Housing Units (SHU) is nearly six times higher than that of the General Population (GP).[13] These tragic facts confirm what mental health experts have long concluded, namely that solitary is “inherently pathogenic; […] one of the most severe forms of punishment that can be inflicted on human beings short of killing them.”[14] Organizations and institutions around the world, including the United Nations, multiple states, medical organizations, and correctional associations, have moved away from relying on harmful restrictive housing and we urge the City to follow suit.[15]

Physical Design and Inadequate Resources as Hurdles to Care

The resources available inside New York City jails—physical design, staffing options, and technical capacity—present additional hurdles to providing adequate care.

Physical Plant as a Barrier to Treatment

Despite the significant healthcare needs of the population they house, jails are not constructed like hospitals, which prioritize clinical space and access to providers. For instance, the Anna M. Kross Center – the jail on Rikers Island which houses many of the system’s most high-needs patients – was built haphazardly over many years. As each new wing of the jail was added, the corridor connecting the housing units to the central clinic became longer and longer. Now many patients must be escorted close to a mile to access treatment. In an emergency, the problems with this arrangement are obvious, but even for routine medical visits; such distances create bureaucratic and staffing headaches. Although healthcare staff have established “mini-clinics” closer to housing units, these measures are merely a stop gap, and these spaces are often cramped, lack infrastructure to maintain hygiene, and do not allow for confidentiality.

More broadly, our City jails lack adequate confidential treatment spaces. The scarcity of dedicated treatment spaces near housing units is particularly detrimental to effective mental healthcare delivery. Many people are understandably unwilling to candidly reflect on their struggles within earshot of other incarcerated people and custody staff, and they shouldn’t be asked to in order to receive treatment. Clinical sessions in converted utility closets or on the dayroom floor are a far cry from the therapeutic setting patients with serious mental health conditions need and deserve. Even when people are seen in a central clinic, privacy is very often compromised by security staff who linger in the room, or because patients are brought in groups and crowd treatment spaces.

Inadequate or Inappropriate Staffing Prevents Access to Care

Relatedly, even well-intentioned officers regularly serve as a barrier to care simply because they are unavailable. Because every incarcerated person requires an escort by a correctional officer to visit and leave the clinic, our clients are frequently stuck in limbo, unable to access treatment they know is unavailable. The unavailability of uniformed staff, who are occupied with other tasks, or otherwise unwilling to help, lead to escort shortages. In turn, those shortages frequently result in missed appointments and treatment delays. One potential fix to overcoming the inevitable competing demands on correctional staff is to create roving medical escort posts during day-shifts for officers who are not assigned to other tasks. This could be achieved at present staffing levels through more efficient staff management, ensuring adequate escorts, and limiting instances in which staff are pulled away from crucial security positions.

Similarly, healthcare staff in the City jails face dual loyalty challenges, which can interfere with providing compassionate and appropriate care. Although medical and mental health providers are ethically bound to treat patients, they face an understandable pull towards their colleagues – correctional staff who they rely on to ensure the providers’ safety. This dynamic can lead providers to doubt their patients’ credibility and to feel hesitant to speak out when they witness or suspect abuse on the part of correction officers.

We urge the City Council to empower correctional healthcare officials to weigh in on management decisions and have unfettered authority with regard to treatment matters for all people in our city jails, unless a genuine, immediate security emergency is at play. Simultaneously expanding de-escalation and mental health first aid training among corrections staff, especially those who are in non-mental health designated units posts, can help officers better understand how treatment interventions work and why they should be given priority.

Inaccessible Medical and Mental Health Care During Intake

Upon entering Department of Correction’s custody, our clients’ first stop is an intake unit, where they wait to be seen by Correctional Health Services for an initial medical and mental health assessment. Intake units consist of large cages, solely designed to hold people while they await their assessment with CHS and a transfer to a more appropriate housing within the facility. Regardless of medical or mental health needs, people may be held in these intake units for periods lasting as long as a week without access to a beds, sheets, showers, phones, and most importantly, medication. CHS does not provide treatment during intake but rather waits until people are assigned to a housing unit. One story outlines the horrors that can occur when housing location and lack of priority on behalf of the Department takes place:

Mr. C, who struggled with a seizure disorder and diabetes, was suffering from withdrawal when he was arrested. Due to concern about reduced insulin levels, his attorney bought him a candy bar before his arraignment. At the prosecutor’s urging, the judge set bail beyond what Mr. C could afford, and he was taken into custody. His attorney requested medical attention and our office followed up with DOC. When our client appeared in court five days later, he was visibly sicker and said he thought he would die. He had been sleeping on the floor and relying on other people’s insulin because he had not yet been examined. He was truly afraid for his life until he was released.

Our clients regularly wait several days after being taken into custody before they receive crucial medicines. Often, they do not receive the requisite care until our office advocates on their behalf. Similar lapses occur when individuals travel between jails. Whether high blood pressure medicines, inhalers, or anti-psychotic medications, these lapses can have devastating consequences.

Thes dangers are compounded for our clients with developmental disabilities and intellectual disabilities, who are among the most vulnerable in jail and prison settings. They are frequently the targets of violence, sexual violence, extortion, and abuse from staff and other incarcerated people. The intake process in the City jails does not provide any mechanism to keep these individuals safe, provide accommodations, or direct them to necessary services. Frequently, these individuals have masked their disabilities during the course of their lives and may not feel safe or able to affirmatively offer up information about their needs. Even worse, they may have an impairment that has not been identified in the community, but which nonetheless necessitates accommodation and services.

Because of DOC’s limited screening process, developmental and intellectual disabilities typically go unnoticed until our office identifies them to because our clients need accommodations. Yet because lawyers are not often clinically trained to identify such conditions and an arraignment interview is not the proper setting to do so, we likely underidentify individuals in need. Those individuals who are identified are placed in General Population housing units or in Mental Observation housing units with people who do not have the same needs. Almost without exception our clients with developmental and intellectual impairments are victimized in these settings. Additionally, because certain disabilities make it difficult to follow instructions or obey jail rules, people with developmental and intellectual disabilities may be more likely to have altercations with staff and suffer placement in solitary confinement. The result is that many clients with developmental and intellectual disabilities are victimized not only by other individuals but by the system at large.

Mr. W, who suffers from a severe intellectual impairment, was charged with a misdemeanor and initially released on bail. However, when he was found to be too intellectually disabled to participate in his own defense, the judge, over vociferous objections, remanded him to City jail pending placement with the Office for People with Developmental Disabilities (OPWDD). It took OPWDD approximately two months to ensure Mr. W’s release. At that point, OPWDD referred him for outpatient services at the very same facility at which he had received services in the past and his charge was dismissed. During his needless two-month incarceration, Mr. W was assaulted in his housing unit, suffering blows to his head and eye. Even though OPWDD determined Mr. W could safely and appropriately live in the community, he became a victim of the very criminal justice system allegedly designed to keep communities safe.

We know the Board of Correction is working with the Department to house people more efficiently and provide people with immediate access to necessary essentials like a bed and blankets. Nonetheless, our clients still face inhumane, deprecating conditions that are not only unsanitary but they prevent people from accessing basic needs, including medication and medical and mental health treatment.

Discharge Planning and Continuity of Care To Enhance the Health of Communities

Finally, in order to truly improve the health and safety of our communities, the City should ensure that treatment while in DOC custody is part of a continuum of care that starts before arrest and arraignment and continues upon discharge or release. Such a commitment will lead to healthier and safer communities and thousands of people who avoid incarceration. To that end, BDS supports the Council’s effort to improve the continuity of care upon discharge through Int. No 1236. Discharge planning should be made available, on a voluntary basis and not mandated as a condition of release or housing, to all people in the jail system. Because Health + Hospitals already plays an important role in discharge planning for many individuals in the jail system, their role should be expanded and their expertise should guide discharge planning for all people with medical and mental health conditions.  Furthermore, we would welcome enhanced discharge services for individuals released from court, particularly those people with serious medical and mental health needs.

Administrative Barriers to Accessing Care

Among the most readily fixable of the barriers to accessing care are countless rules, guidelines, policies, and practices that prove to be unnecessary and inappropriate hurdles to our clients who seek medical or mental health treatment.

Logistical Complications Prevent Mandated Treatment

One of the most common problems that our clients face is the need for treatment and appointments with outside specialty providers. While prisons and jails cannot staff a full range of specialists full-time, outside specialty appointments and follow up visits are often equally inaccessible. Logistical and security complications involved with transporting people to and from outside clinics are a central challenge. For instance, when correctional escort officers are absent or reassigned to other posts, a chain reaction can delay an appointment for months. Even when clients are transported to appointments, they are often left waiting hours in the jail intake for their escort, arrive late for appointments, and are ultimately told that they arrived too late to be seen that day. Similarly, clients who have upcoming follow-up appointments scheduled with specialists before their arrest often miss those appointments. H + H too often fails to promptly schedule and deliver follow-up visits, despite being informed of the situation by the patient and our office. Rescheduling missed appointments only compounds delays in treatment. Sufficient escorts and dedicated specialty schedulers who interface between correctional staff and specialty clinics are fundamental to address specialty care delays.

One BDS client had 2 stents around his kidneys which were scheduled to be removed after only 2 weeks. His arrest delayed the necessary operation and healthcare staff in the jail ordered an assessment before moving forward. Despite significant advocacy from our office, approximately 5 months went by without a response or any specialty appointment being scheduled. Eventually, the client developed an infection which had to be treated, further delaying the operation to remove the stents. Meanwhile, our client suffered extreme pain and became lightheaded when urinating. His appearance declined and his skin became pale. He ultimately had to be transferred to the hospital where he finally received treatment. 

Forced Choices Between Safe Housing and Necessary Treatment

Transgender housing is perhaps chief among these categories. The Department must account for the increased vulnerability of transgender people in our penal system. The Department’s decision to move the Transgender Housing Unit to the Rose M. Singer Center, the sole women’s facility on Rikers Island, earlier this year is a positive step. It is vital that the Department recognizes transgender woman as women and treats them accordingly. Nonetheless, implementation of this change presents serious concerns. All incarcerated women, including transgender women, should be held in a women’s facility, regardless of their disciplinary history or treatment needs. DOC must ensure that treatment options for transgender women are readily available whether they choose to apply, stay or leave the Transgender Housing Unit on Rikers Island.

BDS worked with a transgender woman who was being held in a male facility. This woman requested the Transgender Housing Unit immediately after she was taken into DOC custody. She did everything she was supposed to do and more, including identifying and outing herself to DOC staff in an effort to ensure her own safety. Unfortunately, her placement in the THU was delayed due to necessary substance use treatment. Because the treatment is only available in one male facility and one female facility on Rikers Island, and neither of those housed the THU, our client could not access both necessary medical treatments. Because DOC identified our clients as a man, she was confined to a male facility where she was in danger every day, including being the victim of sexual and verbal harassment. Fortunately, she was accepted into the THU after her substance use treatment was completed, but the inability to access two necessary treatments posed a grave danger.

We urge the City Council to ensure treatment is not denied or that people are not forced to choose between their physical and medical safety. Treatment should never be bared simply based on location and mis-gendering.

Conclusion

To improve healthcare in our City’s jails, we urge you to consider treatment in jail as part of the continuum of care and view the broader context that allows substandard healthcare to be the norm for incarcerated people.

A landmark article published in the New England Journal of Medicine asks – and answers – whether “health professionals [should] be accountable not only for caring for individual Black patients but also for fighting the racism — both institutional and interpersonal — that contributes to poor health in the first place? Should we work harder to ensure that black lives matter?”[16]  It  notes that “the rate of premature death is 50% higher among Black men than among white men” and that “[b]lack women in New York City are still more than 10 times as likely as white women to die in childbirth.” The author, Dr. Mary Bassett, was the Commissioner of the New York City Department of Health and Mental Hygiene, and relied upon her own department’s statistics to support her findings.

The article does not explicitly address correctional healthcare, but Dr. Bassett explains that her work was inspired by another matter of the criminal legal system: police killings of unarmed Black people – with no legal sanctions – and the public uprisings that followed. The same racism that afflicts law enforcement in our communities also underlies many healthcare deficiencies in our prisons and jails, which are disproportionately populated by people of color and poor people.

We urge New York City to view Dr. Bassett’s article as a wake-up call and reevaluate the ways in which race impacts medical care that is needed and delivered before, during, and after incarceration. Despite assurances from City officials, including DOC Commissioner soon after she was appointed, DOC supervisors regularly refer to our clients as packages, at best, or animals, expletives, or racial slurs.

Disparities and biases are not limited to race, but regularly result from any demographic feature or personal identifying characteristic, including sexual orientation and gender identity or expression. Our clients are forced to rely on transphobic correction officers to access medical appointments relating to hormone therapy. Likewise, medically-assisted treatment for drug addiction is stigmatized as somehow “less than” other forms of medical care, with different standards of access. Although society continues to treat non-conforming identities and substance use and abuse as pathological behaviors, the true sickness is our habitual use of inhumane and ineffective prisons and jails, which are governed through deprivation, humiliation, abuse and neglect.

In “A Plague of Prisons: The Epidemiology of Mass Incarceration in America,” Ernest Drucker reframes mass incarceration as an epidemic – one like any other widespread infectious disease – that exploded in the 1970’s through the 1990’s and onto today. Indeed, while it is critical to provide the highest quality of care to any and all people in state custody, it is also important to recognize that incarceration is both inherently pathogenic and, itself, a disease. That is why policymakers must focus on decarceration and closing Rikers Island now.

BDS is immensely grateful to the Committee on Criminal Justice, Committee on Hospitals, and Committee on Mental Health, Disabilities and Addiction for hosting this critical hearing and shining a spotlight this issue. Thank you for your time and consideration of our comments. We look forward to further discussing these and other issues that impact our clients. If you have any questions, please feel free to reach out to Jared Chausow, our Senior Advocacy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

 

[1] Wilper AP, Woolhandler S, Boyd JW, et al. The health and health care of US prisoners: results of a nationwide survey. Am J Public Health. 2009;99:666–72

[2] The National Commission on Correctional Healthcare has recognized these dangers. See Nat’l Comm. On Corr. Healthcare, About Us, https://www.ncchc.org/about (recognizing that improving the quality of care in jails and prisons not only “improve[s] the health of their inmates,” but also “the communities to which they return”).

[3] The reality of inadequate access to care is well-established in medical literature. See Wilper AP, Woolhandler S, Boyd JW, et al. The health and health care of US prisoners: results of a nationwide survey. Am J Public Health. 2009;99:666–72 (reporting the results of a nationwide study that showed that nearly 70% of individuals with persistent medical problems did not receive even a medical examination upon entering a local jail; more than 40% of people who were taking medication when they were first incarcerated stopped the medication once they entered the local jail; and approximately a quarter of the individuals who suffered a serious injury in a local jail were not seen by medical personnel following their injury)

[4] Pew Charitable Trusts, Prison Healthcare: Costs and Quality, Oct. 2017, https://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality.

[5] Selling, D., Lee, D., Solimo, A., Venters, H. (2015), ‘A Road Not Taken: Substance Abuse Programming in the New York City Jail System’, in: Journal of Correctional Health Care 21(1) pp. 7-11

[6] German Lopez, There’s a Highly Successful Treatment for Opioid Addiction. but Stigma Is Holding It Back., Vox, Oct. 18, 2017 at , https://www.vox.com/science-and-health/2017/7/20/15937896/medication-assisted-treatment-methadone-buprenorphine-naltrexone.

[7] See Goodnough, A., and Zernike, K., ‘Seizing on opioid crisis, a drug maker lobbies hard for its product’, The New York Times, 11 June 2017.

[8] Shalev, S. (2008), A sourcebook on solitary confinement. (London: Manheim Centre for Criminology, London School of Economics), p. 15.

[9] Haney, C. (2003) ‘Mental health issues in long-term solitary and “Supermax” confinement’, in: Crime & Delinquency, 49(1) pp. 133-136.

[10] Id.; Grassian, S. (1983), ‘Psychopathological effects of solitary confinement’, in: American Journal of Psychiatry, 140(11), p. 1452.

[11] Haney, 2003, p. 133; Grassian, 1983 p. 1453; Gilligan, J., Lee, B., (2013), ‘Report to the [New York City] Board of Corrections’, [online] (Available at http://solitarywatch.com/wp-content/uploads/2013/11/Gilligan-Report.-Final.pdf [accessed 11 August 2017]), p. 6.

[12] Venters, H., Kaba, F., Lewis, A., Glowa-Kollisch, S., Hadler, J., Lee, D., Alper, H., Selling, D., MacDonald, R., Solimo, A., Parsons, A. (2014), ‘Solitary confinement and risk of self-harm among jail inmates’, in: American Journal of Public Health, 104(3), p. 445.

[13] Statistics provided by DOCCS

[14] Gilligan and Lee, 2013, p. 6.

[15] The United Nations Standard Minimum Rules for the Treatment of Prisoners, the “Mandela Rules,” expressly prohibit prolonged solitary confinement beyond 15 days as a form of torture or cruel inhuman or degrading treatment.

[16] Mary T. Bassett, M.D., M.P.H., #BlackLivesMatter — a Challenge to the Medical and Public Health Communities, 2015 New Eng. J. Med. (2015), http://www.nejm.org/doi/full/10.1056/NEJMp1500529#t=article.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEES ON IMMIGRATION, HEALTH & GENERAL WELFARE ON THE IMPACT OF THE PROPOSED “PUBLIC CHARGE” RULE IN NYC

 TESTIMONY OF:

Nyasa Hickey – Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration

Committee on Health and

Committee on General Welfare

 

            Oversight Hearing: The Impact of the Proposed “Public Charge” Rule on NYC

November 15, 2018

My name is Nyasa Hickey and I am Immigration Counsel at Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. We are a Board of Immigration Appeals-recognized legal service provider. I thank the New York City Council Committees on Immigration, Health and General Welfare for the opportunity to testify about the impact of the proposed “public charge” rule on New York City residents.

The Proposed Rule Change

As the Council already knows, this proposed rule significantly changes who will be eligible to obtain Lawful Permanent Resident (LPR, aka “green card”) status in the future.  The proposed rule directly discriminates against and excludes middle-income, low-income and poor immigrant families from being able to seek long-term stable status in the United States as a lawful permanent resident. Perhaps most importantly, the rule change sends the message that low-income immigrants are not valuable community members and are not welcome in the United States.[1]

The proposed “public charge” rule change, if it goes into effect, will have tremendous negative effect on immigrant communities. We are already seeing the chilling effect of the proposal, as many of our clients are already too scared to apply for benefits that they are legally entitled to, even after we advise them that the rule change will not affect them. This unnecessarily and harmfully puts the health and safety of our immigrant communities.

We believe that the rule change will have the following impact on New Yorkers:

  • Prevents immigrant families from accessing benefits they are entitled to and that their tax dollars help to support;
  • Prevents people from accessing services that support their health, food, and secure housing situations—when people do not access these necessary services, it not only harms the individual but their family members as well;
  • Will create a catch-22 for many immigrants. They will have to make the choice between seeking essential public support services needed now to stabilize their health, nutritional or housing situation now, or maintaining their ability to receive a green card, permanent lawful status, and securing their family unity in the future; and
  • Will result in more difficultly for low-income people to immigrate, reunite or remain with their families.

Indeed, we have already seen how the mere proposal of this rule has already made immigrant families afraid to seek out programs and benefits that support their basic needs. We have been inundated with questions from our clients, many or most of whom would not be affected by the proposed rule, but who are terrified nonetheless. Some are refusing to apply for certain benefits even after we advise them that the rule change will not affect them. Furthermore, many of our clients are being told by other people, agencies, unscrupulous lawyers, and the media, that they are ineligible to apply for certain benefits or should withdraw from any benefits immediately or face deportation. This is inaccurate and unnecessarily spreads fear and concern in immigrant communities.

Our clients’ fear is compounded by the misinformation about benefits eligibility that they receive when they seek to enroll in benefits. Our clients have been informed by City benefits navigators and court-mandated program administrators that they are ineligible for benefits as an immigrant. This is factually incorrect and often requires advocacy by BDS attorneys and social workers to write letters, make phone calls, and personally attend benefits enrollment appointments to correct the misinformation and enable our clients to enroll in public benefits and programs they are entitled to receive.  In other instances, when enrolling in public benefits, our clients have been questioned by City employees to disclose the details of their immigration status and the basis for their work authorization, even while presenting a valid Employment Authorization Document issued by United States Citizenship and Immigration Services (USCIS).  This interrogation into the legalities of immigration status, the basis of their work authorization, and the status of someone’s social security number is unnecessary and creates more fear and distrust within immigrant communities, especially under the current national anti-immigrant political climate.

Through the proposed rule, the Federal Administration also seeks to broaden the scope of the public charge bar to include an analysis of negative factors. Such factors include a large family size, limited English proficiency, age, medical conditions that impact ability to work or go to school, physical and mental health conditions, and credit scores.  BDS represents thousands of non-citizen New Yorkers every year. Most of them live in mixed-status households, meaning that U.S. citizens, LPRs, visa holders and people without documents are living together, working together, and supporting one another. Many of them will be affected if the proposed rule goes into effect.

Here are some categories of people who will be negatively affected by the proposed rule:

  • A person who is applying for a green card now or anytime in the future will have to make the choice between seeking immediate and necessary public benefits to support herself and her family against her future ability to get a green card, which would give her work authorization and long-term stable status to remain with her family in the United States.

The list of benefits under the proposed rule change is expanded to include Medicaid, housing, SNAP, Medicare Part D, and assistance programs.

  • A person who is applying for a green card may be determined ineligible as a public charge because he or she is determined to be “likely to use certain public benefits in the future” because they have a combination of the following factors:
    1. Earn less than 125% of the federal poverty level;
    2. Are a child or a senior;
    3. Have certain health conditions that require extensive treatment or affect the applicant’s ability to work, attend school, care for themselves;
    4. Have limited English ability;
    5. Have less than a high school education;
    6. Have a poor credit history; or
    7. Have obtained a fee waiver in applying for an immigration benefit, such as a fee waiver for employment authorization for Temporary Protected Status.
  • Immigrant families who are afraid to access public benefits for themselves or their children because of the stigma associated with public benefits and immigrants. Individuals and families have already been deterred from applying for public benefits and withdrawn from benefits because of fear and misinformation about the proposed public charge rule, even if they will not be subject to a public charge test.
  • Green card holders who receive public benefits or have significant health issues, are seniors, children, or unemployed, would not be able to travel abroad for more than six months because they risk being deemed a public charge upon their return to the U.S. For example, someone with a family emergency in their home country would have to consider very carefully about leaving the US for more than six months because they would be subject to the public charge assessment upon reentry.

The public charge rule harms immigrant families because it requires an analysis of a whole host of factors that are outside an individual person’s control in determining whether or not a person may remain in the U.S. The rule clearly seeks to exclude poor people, people with limited English comprehension, children and the elderly from permanent resident. It officially categorizes any person who potentially fits within these categories as undesirable. The rule change is unfair and unjust and anathema to the American dream. But there is much the City can do to combat this xenophobic policy change.

Recommendations

  1. We call on the City Council to pass Resolutions 608-2018 and 609-2018 and submit a comment to the Federal Register on behalf of the City in opposition to the proposed rule change.

We also urge you to encourage all New Yorkers to submit individual comments to the Federal Register on this important issue.

  1. Continue funding and supporting organizations like BDS that provide direct legal services and advice to immigrant New Yorkers.

Brooklyn Defender Services attorneys and social workers are on the front lines serving immigrant New Yorkers. However, under the current Administration’s enforcement regime, characterized by constantly changing policies, each immigrant client’s intake, legal analysis, and risk advisal has become more challenging and nuanced than ever before. In addition, applications that were previously considered to be simple applications, such as Employment Authorization Documents, or applications without complicating factors, no longer exist.  Under new Executive Orders and directives issued at the federal level, each application is complex and requires an enormous amount of BDS’ resources.  Applications are subject to increasing delay times, often require follow up in the forms of a Request for Evidence, and, if denied, put our clients at risk under the new referral Notice to Appear referral to immigration court policy.

Continued and increased funding for immigration legal services is one of the most important tools that the City Council has to ensure that immigrant New Yorkers can remain in their homes with their families.

  1. Improve training for city benefits navigators and other city staff who interact with and advise immigrant New Yorkers

Some of our clients who are seeking to enroll in benefits have mistakenly been told by navigators that they do not qualify for benefits because they are non-citizens. Other BDS clients have been interrogated by navigators about their immigration status and the basis for their employment authorization. In many of these cases, the navigators are simply uninformed about all of the complexities in immigration law. We then have to use attorney and social worker resources to advocate with the benefits navigators to ensure that our clients are allowed to apply for the benefits to which they are entitled. We would be happy to work with the City to improve training for navigators and other City staff who interface with immigrant New Yorkers about the public charge and related issues.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Daniel Ball, Communications & Development Coordinator, 718-254-0700 ext. 579 or dball@bds.org.

[1] This is a helpful FAQ guide: https://www.momsrising.org/blog/what-you-need-to-know-on-the-public-charge-rule-immigrant-families

 

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON GOVERNMENTAL OPERATIONS AND COMMITTEE ON IMMIGRATION OVERSIGHT HEARING ON LANGUAGE ACCESS IMPLEMENTATION PLANS.

TESTIMONY OF:

 

Juliana Chereji – Family Defense Practice

 

BROOKLYN DEFENDER SERVICES

 

 

Presented before

The New York City Council

Committee on Governmental Operations and Committee on Immigration

            Oversight Hearing on

Local Law 30 of 2017: Language Access Implementation Plans.

October 25, 2018

 

My name is Juliana Chereji and I am a supervising attorney in the Family Defense Practice (FDP) of Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year.

 

Since its inception, BDS’ Family Defense Practice, has sought to bring the highest quality interdisciplinary representation to our clients, while helping them obtain the benefits and services they need out-of-court to keep their families safe and strong.  I have represented primarily Spanish-speaking clients during my tenure at BDS since 2009 and have done advocacy surrounding language access issues since 2014.

 

I thank the New York City Council Committee on Governmental Operations and the Committee on Immigration, and in particular Chairpersons Fernando Cabrera and Carlos Menchaca, for the opportunity to testify about language access issues in the New York City Administration of Children’s Services (ACS).

 

Background

 

With over 15% of our clients speaking a primary language other than English, FDP knows how important it is for our clients with limited English proficiency (LEP) to have attorneys and social workers who can communicate with them in their primary language. It enhances the attorney-client relationship and vastly improves the quality of representation that FDP provides our clients.[1]

 

FDP recruits attorneys and social workers from different backgrounds who speak many languages because clients greatly benefit from working with attorneys and social workers who speak their primary language.  Reflecting the diversity of Brooklyn, FDP staff speaks over ten different languages, including Spanish, Russian, Haitian Creole, Mandarin, Cantonese, Arabic, French, Korean, Urdu and Bengali. Over a third of FDP’s staff is bilingual.  Clients who do not speak English as their first language benefit from being paired with FDP staff attorneys who speak their language, and who, in many cases, have contacts with community-based agencies and familiarity with a client’s cultural or religious background, a factor which is often relevant in an Article 10 case. FDP also uses telephonic interpretation services to translate for LEP clients that speak a language other than those spoken by our staff.

 

While having a legal advocate that speaks your language makes an enormous difference in the outcome of cases, it is equally important for our clients to have access to services in their native language as they navigate all aspects of the child welfare system in Family Court, in meetings with their ACS caseworker, or when engaging in programs and other services. Our clients’ ability to communicate with ACS staff is critical to keeping their families stable and together, yet for years, our clients have experienced problems with communicating with ACS staff who do not speak their language.

 

FDP regularly raises language access issues with ACS officials, both by email and in-person meetings with managerial staff. In November 2015, BDS submitted a letter to then-Commission Gladys Carrión about language access issues that we encountered on a regular basis. Three years later, many of these same problems continue to have a negative impact on our clients. In the spring of 2018, BDS, along with other family defense providers citywide, met with staff for Councilmembers Stephen Levin and Margaret Chin of the New York City Council to discuss language access issues in the child welfare system.

 

Despite ACS’ administrative efforts and policies enacted through its Language Access Implementation Plan required by Local Law 30, our LEP clients still regularly encounter problems, especially when assigned caseworkers who do not speak the same primary language as they do.

 

 

 

Lack of Quality Interpretation Services

 

ACS’ Language Access Implementation Plan entitles LEP families to have “full access to in-person and telephonic interpretation services in over 200 languages (including sign language) through ACS language services vendors,” interpretation services through bilingual ACS staff, or services from ACS staff in their primary language.[2]

 

While the New York State Office of Court Administration is responsible for providing interpretation services at court hearings, ACS policy requires these services to be available 24 hours per day, 7 days per week, and to be provided in “all interactions between ACS staff and clients who are LEP, deaf, or hearing impaired” for all other interactions with ACS.[3]

 

Nevertheless, BDS often witnesses and hears from our clients that either inappropriate interpretation services are being used or that no interpretation services are being used at all:

 

  • Case workers often incorrectly assume and assert that our clients understand English even when BDS has clarified to them that our clients do not meaningfully understand English enough to communicate regarding their child welfare case.

 

  • Instead of calling interpreter services, ACS case workers may use our clients’ children (including children that are subjects in their cases), other family members, and even the other respondents in their case to interpret complex and sensitive information.

 

  • Rather than providing an interpreter, ACS caseworkers may force families to converse in English during supervised visits, even if their household language is a language other than English, so the caseworker can monitor what is being said.

 

  • Our LEP clients are often not made aware of interpretation or translation services that ACS offers or may feel reluctant to assert their right to interpretation services.

 

  • In some cases where interpretation services are utilized, case workers have used an interpreter who speaks a different specific dialect from the one our client speaks or even an entirely different language, diminishing the quality of the conversation and the accuracy of the information that is being relayed. ACS often does not make a sufficient effort to ensure that culturally competent interpretation services are offered.

 

  • Case workers often express concerns about what our clients are saying to their children during supervised visits when the case workers do not understand their language. The case workers then have additional people observe the visit to monitor their language which greatly reduces the quality of the visits.

 

 

  • BDS attorneys often witness ACS caseworkers using telephonic interpretation services on speaker phone in public areas of family court to discuss sensitive information in front of other people not involved in our clients’ case. Forcing clients to discuss sensitive information in public diminishes the effectiveness of case work contact and erodes trust between parents and caseworkers.

 

Client Stories

 

In August, 2018, BDS arraigned Mr. H., a native Uzbek speaker. Mr. H. speaks a little Russian and very little English, but enough of both to muster basic conversation. Two BDS attorneys, including one supervisor, attempted to speak with him in English but were not able to have a full and complete conversation with an acceptable level of understanding for a legal proceeding. BDS requested at multiple points that the court provide an Uzbek-language interpreter but the court apparently could not find one. Instead, a Russian interpreter was provided. Mr. H. said multiple times that he did not speak Russian well and that he needed an Uzbek interpreter. However, he had been in court all day waiting for an Uzbek interpreter. He later told his attorney that under the circumstances he felt pressured to use the Russian interpreter. He was arraigned without understanding many substantive portions of the court hearing, what was being asked of him, or what his rights were.

 

Since the arraignment, from at least August 9 until October 12, he did not see his child even though he desperately wanted to see them. Though OCA was responsible for interpretation in court, based on our understanding of his interactions with ACS, his Child Protective Special (CPS) almost always contacts Ms. S without a translator and expects him to be able to communicate in English. While he can discuss logistical and other mundane issues in English, Mr. H. and counsel have been adamant that he needs an Uzbek interpreter when he is discussing anything of substance.

 

Finally, ACS and FLCS have requested that Mr. H. engage in various parenting/ DV courses and alcohol treatment. Mr. H. has told his counsel on multiple occasions that he is happy to engage in these services. Counsel for Mr. H. has told FCLS that they should find a language-appropriate referral. On at least four occasions, counsel for Mr. H. told the FCLS attorney assigned to this case that Mr. H. needs Uzbek-language accommodations for his services and for communication with the CPS. FCLS insisted each time either that FCLS had seen the client speak English with the CPS or that the client spoke Russian, or both. None of the attorneys working on this case speak Russian, but BDS produced a Russian-speaking attorney before an October Preliminary Conference. The Russian-speaking attorney attempted to speak with Mr. H. in Russian in front of the FCLS attorney. The Russian-speaking attorney they certified to the FCLS attorney that Mr. H. indeed spoke “very bad Russian.” Despite the ACS Language Access Implementation Plan requiring interpretation services for interactions, ACS staff continued to fail to provide Mr. H. with appropriate translation in his native Uzbek language.

 

***

 

BDS arraigned Mr. B., a native Uzbek speaker, in September, 2018. He arrived in court around 9:30 AM and was forced to wait for an Uzbek interpreter to arrive. Before BDS was assigned, his BDS attorney witnessed Mr. B. attempting to ask his ACS caseworker many questions, partially using a translation app on his phone. His caseworker kept telling him that an interpreter was coming and he should wait and talk to his attorney. Around 12:30 PM, his caseworker, at the urging of a court officer, suggested he work with a Russian interpreter. Mr. B. refused. The Uzbek interpreter arrived around 4:15 PM and he was able to have counsel assigned.

 

After intake, FCLS asked Mr. B.’s BDS attorney if he knew of any Uzbek-speaking providers to whom Mr. B. could be referred for a domestic violence accountability program. Shortly thereafter, Mr. B. allegedly told his caseworker that he would not be doing services unless ordered by the court, which led FCLS to believe they had no further responsibility to find an appropriate provider. However, through appropriate translation services, Mr. B. expressed a different position to his BDS attorney. FCLS’s position may be based, at least in part, on the caseworker’s inability or unwillingness to communicate with him using a translator, as well as their inability to actually find an appropriate provider.

 

Recommendations

 

While the goals and policies outlined in ACS’ Language Access Implementation Plan should ensure LEP families are receiving the interpretation and translation services they need, our experience shows that public-facing staff often do not follow the policies, which can confuse our clients and exclude them from full participation in their cases.

 

  • Because many respondents do not feel comfortable asking for interpretation services or may not know they have the right to ask, ACS staff must be trained to proactively offer interpretation and translation services in every case, even if there is an assumption that the client speaks English.

 

  • Whenever possible, ACS should assign case workers that speak the same language as the parents.

 

  • ACS should include language access protocol review in supervisory review between public-facing staff and their supervisors.

 

  • ACS should make their best efforts to refer parents to outside programs and services that are culturally competent and offer interpretation services.

 

Conclusion

 

BDS thanks the Council for ensuring ACS and other city agencies create and implement language access policies through Local Law 30. It is crucial to all of our clients’ cases and to their families that they are able to effectively communicate with their caseworkers and other ACS staff. When public-facing ACS staff members are not compliant with ACS’ language access protocols, our LEP clients are unable to fully participate in their cases and risk further instability in their families’ lives. We urge the Council to use its power to hold ACS accountable in enforcing its implementation plan and ensure New York parents and families can effectively communicate with ACS.

 

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Daniel Ball, Communications & Development Coordinator, 718-254-0700 ext. 579 or dball@bds.org.

[1] See, e.g., Jayesh M. Rathod, The Transformative Potential of Attorney Bilingualism, 46 U. Michigan J. Law Reform 863-920 (2013).

[2] The Mayor’s Office of Immigrant Affairs and the Mayor’s Office of Operations, Local Law 30 Report (June 30, 2018), available at https://www1.nyc.gov/assets/immigrants/downloads/pdf/moia-report-LL30-june-2018.pdf.

[3] Ibid.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON JUSTICE SYSTEM OVERSIGHT HEARING ON PAY HEARING AND RETENTION RATES FOR ADAS AND PUBLIC DEFENDERS

TESTIMONY OF:

 

Danielle Regis – Criminal Defense Practice

 

BROOKLYN DEFENDER SERVICES

 

 

Presented before

The New York City Council

Committee on Justice System

            Oversight Hearing on Pay Parity and Retention Rates

for ADAs and Public Defenders

 

October 25, 2018

 

My name is Danielle Regis and I am a senior staff attorney in the criminal defense practice of Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. I have been defending clients in Brooklyn criminal and Supreme Court for more than seven years.

I thank the New York City Council Committee on Justice System, and in particular Chairperson Rory Lancman, for the opportunity to testify about the urgent need for pay parity for public defenders and assistant district attorneys with other city-funded attorneys. My testimony today will focus on the challenges that I and my colleagues at Brooklyn Defender Services face as we struggle to remain in a rewarding profession that makes it difficult for us to pay off our student loans, rent an apartment or start a family.

In September and October 2018, Brooklyn Defender Services conducted interviews and a focus group with public defenders willing to share their personal stories with the Council. Many of our defenders are plagued with growing student loan debt. Most expressed struggling to save as a top concern. The majority disclosed their need for therapy – and the struggle to cover its costs. Others disclosed opting not to pursue therapy because of its cost – and having to find other ways to ensure self-care.

A common topic of concern: starting a family. A vivid example of the enormity of this concern comes from someone who expressed that in deciding to start a family they have had to come to grips with the ways in which this decision will clash with their professional commitment to this work. They shared, “No one becomes a public defender for the money, but at a certain point the low pay and student loan debt that the vast majority of lawyers face become untenable when faced with the financial challenges of raising a child in New York City.”

We discovered those financial challenges present in a variety of ways for our defenders. One defender disclosed, “[My spouse and I] live in a rent stabilized apartment and still struggle to make ends meet, with no hope of saving for the future.”

All of the defenders conveyed that there has been at least one occasion when they had to reflect on the seemingly inevitable existential question – which one defender characterized best: whether “being a public defender is incompatible with the goals” of financial stability and starting a family. All of the defenders who participated in the interviews and focus group expressed a profound sadness at having to confront this question.

Defender Stories

Story #1: My spouse and I decided to start our family. However, financial necessity is forcing me to consider ways to make more money which would force me out of the profession I love. It’s a devastating issue for me and my family.

Story #2: If I have a second child, in order to send them to daycare with my first child, I would have to use my entire take home salary on childcare.

Story #3: I’ve been in a seemingly eternal battle with my student debt. I come from a working class family, and am the first in my family to ever go to college and I am also the only lawyer in my family. My parents could not help me with tuition and now I have so much debt. Our salary, and the costs of living in New York City force me to make minimal payments so I have only been chipping away at the debt. If we get a salary raise, I tend to use that money to make some additional payments on my loans. I feel like I will never be financially stable if I stay a public defender. I hate that this insurmountable debt threatens the work I love.

Story #4: I am single. I have roommates. I need to have roommates in order to afford to have a roof over my head. I also need therapy because our job takes a toll on me sometimes. I can’t afford therapy. I also can’t afford to fly home to see my family on the west coast as often as I would like. I attempt to save but I have come to realize that it’s not a realistic goal I can achieve.

Story #5: I lived at home with my parents for my first couple of years as a public defender. The commute to work was rough but I had to endure it. I just couldn’t afford to move out. To move out, I had to implement a strict budgeting plan in order to save enough money to have for a security deposit. Then the year we got a salary raise I had a little more to work with and was able to save more. I now have my own place, but I have a long commute to work because I cannot afford rent anywhere in the vicinity of our office. I love the work that I do. Even though the financial aspect of it is challenging, you try to make it work.

Story #6:  I’m the one that’s supposed to be helping my aging parents, not the other way around. I have to be honest and truthful and disclose: my parents still buy my fights to go home to see them for the holidays. Recently, my laptop got damaged and needed replacement. When I couldn’t afford to pay for it my father helped with me with the costs to purchase a new one. I am so grateful that my parents are able to help me but it’s a source of stress for me that they do so. Each year I am forced to think about how this system of support from my parents is not sustainable. My parents are retired now and I know they use up their savings when they help me financially. I worry about how, one day, my parents are going to depend on me, their only child. I really don’t know how I am every going to get out of this cycle of debt to be able to really assist and support them.

I tried to rent my couch on AirBnB as a way to get extra income so that I am in a better financial situation. That didn’t last very long because my landlord didn’t agree with it and almost evicted me.

I’ve opted not to marry because the legal consequences of my student loan debt would be disastrous for my partner.

Story #7: My spouse and I decided that we were only going to be able to afford to raise one child, even though we both want more children. We are lucky that my spouse works in a different field and makes more money than I do. And even with that, we have struggled a lot financially. Those financial struggles placed a strain in our marriage and affected us deeply over the years. We had to undergo counseling and therapy. Therapists are expensive, and are not really covered by our insurance. Therapy and counseling have helped us immensely. My spouse and I are still struggling financially, but we have learned to accommodate as we go along and we work hard at making sure that financial issues don’t take over.

Story #8: A surprising consequence of my decision to pursue a lifelong career in public defense is the impact it has had on my marriage. My husband and I have been through some very tough times, not because I work long hours and work too many night shifts (causing childcare havoc) but because we didn’t know if we can make ends meet. I cannot begin to adequately describe the level of anxiety our financial instability has brought to us. I have had to defer payments on my student loan debt so many times I don’t think I will ever be eligible for loan forgiveness even though I’ve satisfied the requirement of practicing for at least 10 years in the field. Things have gotten better mostly because my husband has taken advantage of opportunities to earn extra money here and there. I’m not able to do that mostly because I don’t have time and take care of our daughter takes priority. We are now homeowners, but it was an extremely difficult path. It took multiple us tries at mortgage applications to be able to buy our house – and now that we have it, the financial troubles only continue because the costs of repairs are eating up our savings. I know that by choosing to pursue the work I love, I am also choosing to continue down this difficult financial path. I didn’t choose this work for the money.

Story #9: I recently put in my notice at BDS. I have accepted a job as an attorney at a different non-profit organization that is funded by foundations and thus able to pay higher salaries. I have been a public defender for eight years and it is more than just a job – being a public defender is my identity. But I am in my mid-thirties and my husband and I are ready and eager to start a family. We did the math and realized that there was no way for us to pay for infant care that costs nearly $2,000 per month. We do not have an extra $2,000 per month. We do not have an extra $500 per month after rent and student loan payments and we do not have family in the area who can help with childcare. I am very sad to leave but I had to choose between doing this work and starting a family. I chose starting a family.

Conclusion

Defenders in New York City cannot wait five years, or two years, or even one year to see an increase in pay. If New York City wants to continue to ensure that we provide high-quality public defense to all New Yorkers, regardless of their ability to pay, we must increase wages for our attorneys and social workers on the front lines. We ask the Council to act in the next budget cycle to increase the allocation for public defenders to ensure that we can raise pay to meet that of attorneys at other city agencies, including corporation counsel.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Daniel Ball, Communications & Development Coordinator, 718-254-0700 ext. 579 or dball@bds.org.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON EDUCATION ON EMPLOYMENT AND SCHOOL TRANSPORTATION

TESTIMONY OF:

Shelle Shimizu – Employment Law Fellow, Employment Law Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Education

October 16, 2018

My name is Shelle Shimizu and I am an attorney at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the Committee on Education for holding this hearing and for providing us with the opportunity to testify.

BDS’s employment practice provides legal representation and informal advocacy to people facing employment discrimination due to current or prior contact with the criminal justice system. Our clients face numerous formal and informal barriers to employment. Many are suspended or terminated from employment upon arrest and absent any finding of criminal culpability. Others are completely excluded from employment opportunities due to their criminal histories. In New York State, many occupations are regulated by statutes that limit or exclude people with criminal records—and this includes school bus drivers.

BDS supports the Council’s intention to improve our city’s school transportation system, but urges due consideration to the widespread harm of demonizing people with criminal records. As an organization that serves people impacted by the immigration, child welfare and criminal legal systems, we frequently work with school-aged children who depend on bus transportation to access their education.  Across practice areas, we hear of problematic school transportation practices, including untimely student drop-offs and pick-ups, unnecessarily long bus rides and unprofessional conduct by school bus staff.  Our Education Practice assists BDS clients in addressing these concerns, but systematic failures by the Office of Pupil Transportation (OPT) often compromise the speed and extent of available relief. Accordingly, BDS commends the Council’s proposals that seek to improve accountability and reliability of the school transportation system.

All that said, it is critically important to distinguish job-related misconduct from past mistakes that have no direct connection to the work. BDS submits this testimony to address Intros 926 and 929, both of which pertain to OPTs process for certifying, investigating and disciplining school bus drivers. As a public defender office, BDS is concerned with legislation that, even unintentionally, could lead to undue employment barriers for people with open cases or prior convictions. Today I would like to highlight the following concerns.

School Bus Drivers Are Already Highly Regulated

Recent articles published in the New York Daily News and New York Post raised concerns that the vetting process for school bus drivers is too lax.[1] In the articles, an OPT investigator claims to have uncovered six bus drivers with conviction histories that he believes should have precluded their employment as school bus drivers. However, the articles, as well as a subsequent letter from Comptroller Scott M. Stringer calling for change, do not mention the various steps that an individual must take to become a school bus driver.

In order to drive a school bus, an individual must first obtain a Commercial Driver’s License (CDL) with the required designations through the New York Department of Motor Vehicles. Certain applicants with criminal convictions are prohibited, either temporarily or permanently, from obtaining a CDL. These convictions are enumerated in Section 509-cc, Article 19-A of New York’s Vehicle and Traffic Law.[2] This list is extensive and includes over 80 convictions that could potentially prevent an individual from obtaining a CDL. Notably, the state requires potential bus drivers to either not have one of these disqualifying convictions or to present sufficient evidence of rehabilitation to warrant the CDL.

Next, the person typically must apply for a bus driver position through a private vendor contracted by the DOE. While there is concern that these vendors are not properly running background checks on applicants, we have seen evidence to the contrary. One recent client served as a bus driver for many years and after a break from driving he wished to return to the profession. While he was in the process of applying for positions, he was arrested.  As a result, all of the school bus vendors that he applied to denied him employment due to his open case. No finding of criminal culpability had been made, and yet our client was presumed guilty by the company and denied the opportunity to serve as a bus driver—a position he held for many years.

In the event that a person obtains a CDL and is subsequently hired by a vendor, they must then be certified by the Office of Pupil Transportation. Per the OPT website, in order to receive certification an individual must provide a litany of documentation including: a 19-A final qualification letter provided by the DMV, a 13 county criminal history check letter dated within 60 days, negative drug test results dated within 60 days, and three letters of recommendation.[3]

People seeking employment as a school bus driver must proceed through a vetting process with multiple junctures at which they can be excluded due to their criminal record. While OPT and the city’s school transportation employers are entitled to their own review of school bus candidates, it should be considered within the context of the preceding steps of review.

A Criminal Conviction Should Not Automatically Exclude Individuals from Employment Opportunities and OPT Must Consider Evidence of Rehabilitation

A criminal conviction is not determinative of a person’s character or their abilities as an employee. People can and do change. New York State and City have created a variety of legal protections to support those truths. In enacting Article 23-A of the Correction Law,[4] New York State created standards for employers to follow with the goal of limiting unjust discrimination against a candidate due to a past conviction. The law requires employers to consider a number of factors, including the age of the individual at the time of the offense and the amount of time that has lapsed, to analyze whether the prior conviction should bar employment.  In establishing the law, the Legislature also recognized the importance of rehabilitation:

“Observers of our criminal justice system agree that the key to reducing crime is a reduction in recidivism (i.e. repeated criminal conduct by the same individuals). The great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual’s return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination. Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.”[5]

New York City’s Fair Chance Act and New York State’s sealing statutes 160.58 and 160.59, further reflect a commitment to the fundamental premise that people can be rehabilitated—that they can reenter their communities and live positive lives after involvement with the criminal legal system.

The articles in the New York Post and New York Daily News center around an OPT investigator claiming to uncover several bus drivers with criminal histories that he believes should preclude them from working as a bus driver. While we recognize the instinct to be alarmed, we question the premise that the convictions alone should preclude them from employment, especially without any other information. New York State and City law recognizes the need to consider a variety of factors, including rehabilitation, before drawing such conclusions. In fact, one of the Article 23-A factors an employer must consider is that “New York public policy encourages the licensure and employment of people with criminal records.” We ask that the Council keep this is mind as it solicits information regarding the criminal histories of current school bus drivers.

Any Legislation Must Be Carefully Drafted to Avoid Reinforcing Harmful Stereotypes and Disproportionately Impacting Communities of Color

Black and Latinx people, with or without criminal records, have long faced discrimination in hiring practices. Criminal records only compound the barriers to obtaining or maintaining a job, and blanket bans on employees with such records exacerbate inequality in our society without improving public safety.

This pervasive discrimination inspired New York City’s Fair Chance Act—a local version of the Ban-the-Box laws enacted in jurisdictions across the country. At its core, the Fair Chance Act aims to dismantle stereotypes about the desirability of formerly incarcerated workers and increase hiring rates for that population.[6] Employers have expressed reluctance to hire people with criminal records on the basis that they are seeking what some have called “work readiness”—a term that one leading economic research institute defined as encompassing “personal qualities such as honesty and reliability, an inclination to arrive at work on time every day, a positive attitude toward work.”[7] Employers may, without good reason, regard the existence of a criminal record as a proxy for the absence of those qualities.[8] However, research shows that these presumptions are not only discriminatory, but are indeed false.[9]

Intro. 929 requires that OPT disclose the “number of notifications received from the New York state of division of criminal justice services that a school bus attendant has been arrested for charged criminal activity.” We are concerned about the message that this reporting sends—that those with criminal justice involvement are inherently dangerous and a hidden threat that must be uncovered. This message conflicts with the City’s overall purpose of expanding employment opportunities for all, including people with records.

It is also important to acknowledge any policy that targets people with arrests or convictions will replicate the biases of our criminal legal system and disproportionately affect Black and Latinx people, particularly those experiencing poverty. In 2016, Black people accounted for approximately 48% of total arrests while Latinx people accounted for 34% of total arrests despite representing 26% and 29% of the total New York City population respectively.[10] Consequently, any regulation or policy that regulated the employment of individuals with criminal records will disproportionately and unfairly discriminate against people of color.[11]

We know that this Council has taken many steps forward to protect those with criminal records from employment discrimination. While we recognize that the bills today seek to gather information on OPT’s vetting process, we hope that this data collection will not be used to further limit the employment of those with criminal histories.

Recommendations:

 Add a Section to Intro 929 to Ensure That the Office of Pupil Transportation Abides by Its Legal Obligations Under Article 23-A

The Office of Pupil Transportation’s vetting process should be transparent and should abide by New York Correction Law Article 23-A. Article 23-A prohibits an employer from denying or terminating employment due to a criminal conviction unless the employer is able to establish that the conviction directly relates to the position at hand or that they are an unreasonable risk to public safety. This law requires employers to consider numerous factors in making this determination.

Intro.  929 would require OPT to disclose:

“The timeframe and a description of the actions taken by the department for each substantiated notification for which a driver or attendant lost their department qualifications…”

BDS agrees that greater transparency into OPT’s “investigative process” is necessary. Accordingly, we ask that Intro. 929 specifically require OPT to disclose how it incorporates Article 23-A in its process. In our experience, it is unclear whether OPT follows Article 23-A and considers the factors appropriately before taking any adverse action, including evidence of rehabilitation.[12] This bill should be amended to ensure that Article 23-A is formally incorporated to protect the rights of all OPT employees.

Notably, Article 19-A of the Vehicle and Traffic Law allows individuals with disqualifying convictions to potentially obtain a CDL if five years have passed since the conviction and the individual obtains a Certificate of Relief from Disabilities. The Legislature enacted this thoughtful provision and we believe that this demonstrates a commitment to the idea that rehabilitation is possible and that a conviction should create a permanent bar to employment. As this Council obtains more information on OPT’s vetting process, we encourage this committee to ensure that OPT abides by Article 23-A and that it affords proper weight to any evidence of rehabilitation.

Remove Section 2 from Int. 929, Which Does Not Comport with the City’s Values

Intro. 929 would require OPT to disclose the “number of notifications received from the New York State Division of Criminal Justice Services that a school bus attendant has been arrested for charged criminal activity…” We are concerned that such information may be used to take adverse action against employees or applicants with open criminal cases. Moreover, public reporting may pressure employers to unfairly exclude qualified drivers based on unfounded allegations.

An arrest is not an indication of criminal culpability—by definition, neither guilt nor innocence has been adjudicated by a court of law at the charging stage of the criminal process. Further, people are often arrested and processed through the criminal legal system without any criminal culpability: overpolicing of communities and people of color and/or false reports very often factor into an individual’s arrest.

We cannot discount that individuals may be arrested on unsubstantiated allegations or very little evidence. Further, many are later found to be not criminally culpable. In fact, in 2017 only 23% of New York City adult arrests resulted in a criminal conviction.[13] Yet, we believe that OPT’s current practice is to automatically and immediately suspend an employee upon any arrest. All individuals are innocent until proven guilty in a court of law, and this practice violates fundamental precepts of justice and fairness.[14]

The proposals today do not in themselves create any additional regulations or limitations on individuals who are arrested. However, data on arrests are not probative and we are concerned with how this data will be used in the future. The Department of Education already implements an overly aggressive policy when an employee is arrested. Individuals are immediately suspended upon arrest based on attenuated charges without any opportunity for immediate review of this decision. We hope that the proposals today will not be the first step towards greater inappropriate barriers for those with criminal histories, particularly those with arrests that never lead to a conviction.

Conclusion

Thank you for your consideration of our comments. If you have any questions, please feel free to reach out to Andrea Nieves in my office at 718-254-0700 ext. 387 or anieves@bds.org.

 

[1] Selim Agar and Bruce Golding, DOE Probing Alleged School Bus Driver Approval Fraud, N. Y. Post (Sept. 18, 2018),  available at: https://nypost.com/2018/09/18/doe-probing-alleged-school-bus-driver-approval-fraud/; Ben Chapman and Graham Rayman, City School Bus Drivers with Criminal Pasts Slip Through Gaping Loopholes, N.Y. Daily News (Sept. 14, 2018), available at: http://www.nydailynews.com/new-york/ny-metro-school-bus-drivers-criminal-record-20180914-story.html

[2] Article 19-A Information Packet, Dept. of Motor Vehicles, Bus Driver Unit. DS-700 (updated 09/2017), available at https://dmv.ny.gov/forms/ds700.pdf.

[3] New York City Department of Education, Office of Pupil Transportation, Driver Information, available at: http://www.optnyc.org/vendors/DriverInformation.htm

[4] Full cite

[5] Mem in Support, Bill Jacket, ch. 931, L. 1976.

6     Jessica S. Henry and James B. Jacobs, Ban the Box to Promote Ex-Offender Employment, National Employment Law  Project (October 16, 2007), available at: https://www.nelp.org/wp-content/uploads/2015/03/Henry-Jacobs.BantheBox.article.Oct-07.pdf

7     Harry J. Holzer et al., Can Employers Play a More Positive Role in Prisoner Reentry?, Urb. Inst. 1-2 (2002), https://www.urban.org/sites/default/files/publication/60761/410803-Can-Employers‌-Play-a-More-Positive-Role-in-Prisoner Reentry-.PDF

8     See id.

9     In a study comprised of over a quarter million applicants for customer service positions, researchers at the Kellogg and Northwestern University School of Law found that people with criminal histories did not perform their duties any worse than non-offenders.Based on the research of Dylan Minor, Nicola Persico, and Deborah Weiss, Should You Hire Someone with a Criminal Record? (February 3, 2017), available at: https://insight.kellogg.northwestern.edu/article/should-you-hire-someone-with-a-criminal-record. See also, Jena McGregor, Why Former Felons May be Good Employees, Washington Post (May 6, 2015), available at https://www.washingtonpost.com/news/on-leadership/wp/2016/05/06/why-former-felons-may-be-good-employees/?utm_term=.8616ba5ae69f

[10] Data obtained Data obtained through the Department of Criminal Justice Services. Available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf

[11] Excluding individuals with criminal histories from employment opportunities further disenfranchises low-income, black and brown individuals who are targeted by racially biased law enforcement practices. From stop-and-frisk to the over prosecution of people of color for minor offenses such as turnstile jumping or marijuana, we cannot ignore the prevalence of prejudice in our criminal justice system. See, Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (finding that New York Police Department officers engaged in “indirect racial profiling” by targeting racial minority neighborhoods at higher rates); see also a report published by the Community Services Society, The Crime of Being Short $2.75: Policing Communities of Color at the Turnstile (October 2017) available at, http://lghttp.58547.nexcesscdn.net/803F44A/images/nycss/images/uploads/pubs/Fare_Evasion_FINAL_10_6_17_smaller.pdf; see also, Innocence Project, Racial Disparities in NYC Arrest Data for Marijuana Possession, available at https://www.innocenceproject.org/racial-disparities-in-nyc-arrest-data-marijuana-possession/( finding that between January-March of 2018, 93% of those arrested for marijuana use were persons of color.)

[12] The Article 23-A factors to be considered are the following:

 

  1. That New York public policy encourages the licensure and employment of people with criminal records;
  2. The specific duties and responsibilities of the prospective job;
  3. The bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities;
  4. The time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction;
  5. The age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction;

6.The seriousness of the applicant’s conviction history;

  1. Any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct;
  2. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
  3. Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation regarding the relevant conviction.

 

[13] Data obtained through the Department of Criminal Justice Services. Available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf

[14] Losing employment due to an arrest can result in severe and debilitating consequences. Our clients are largely from low-income communities, and their jobs are often their only source of income. Many live paycheck to paycheck. They are heads of households, mothers and fathers. When our clients lose their employment due to an arrest, their lives are completely upended.  Even if a person is innocent of the charges against them, their case could take months to resolve. Unemployed and without income, they will not only face an uphill battle to obtain government benefits, but will also find it very difficult to find alternative work as certain employers will hold applications in abeyance until the case is resolved.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON IMMIGRATION AND THE COMMITTEE ON YOUTH SERVICES OVERSIGHT HEARING ON LGBTQ IMMIGRANT YOUTH IN NYC

 TESTIMONY OF:

Laura Berger – Immigration Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

and the Committee on Youth Services

Oversight Hearing on

LGBTQ Immigrant Youth in New York City

and

Int. 480-2018

September 17, 2018

My name is Laura Berger. I am a staff attorney in the Immigration Unit at Defender Services (BDS). BDS is a full-service public defender office in Brooklyn, representing nearly 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children, or facing deportation. I thank the New York City Council Committee on Immigration and the Committee on Youth Services for the opportunity to testify about LGBTQ Immigrant Youth in New York City and Int. 480-2018.

Since 2009, the BDS Immigration Unit has counseled, advised, or represented more than 10,000 immigrant clients. Our Immigrant Youth and Communities Team has represented thousands of Brooklyn residents in their applications for lawful immigration status and in non-detained removal proceedings. Highlights of our work include representing young people in their pursuit of Special Immigrant Juvenile Status (SIJS) or Deferred Action for Childhood Arrivals (DACA). Since 2013, we have screened and represented 220 SIJS eligible young people. We specialize in the most complex cases, representing young people who reside in Brooklyn and have significant criminal court involvement or whose parents have ACS involvement.

Background

An estimated 3,800 young people in New York City experience homelessness each day.[1] Youth who identify as lesbian, gay, bisexual, transgender, or queer (LGBTQ) and Black and Latinx youth are disproportionately impacted by homelessness. While LGBTQ youth are estimated to make up only 5-7% of the population, they make up approximately 40% of the City’s homeless youth population.[2] Similarly, nearly 90 percent of NYC shelter residents are Black or Latinx.[3]

One fifth of New Yorkers are immigrants, 30,000 are DACA-holders, and many are undocumented and unaware of their immigration status.[4]

In spite of the important protections for immigrants passed by the Council, immigrant youth without citizenship in New York City, particularly immigrant youth of color, homeless, and LGBTQ immigrant youth, are at constant risk of ICE detection. Instead of providing shelter and services for youth, the City too often relies on the criminal legal system to handle this population’s complex needs. Homeless youth are at great risk since so many activities that are unavoidable are criminalized, such as being in a park after closing, sleeping on the subway, or public urination. Nationally, 39% of homeless LGBTQ youth have had involvement with the juvenile justice system.[5] Youth in the juvenile justice system disproportionately identify as LGBT (13-15 percent), with 40% of incarcerated girls identifying as LGBT.

For undocumented youth, these arrests also put them on ICE’s radar. A summons or misdemeanor arrest may put a youth at risk of deportation, sometimes accompanied by months or years of detention, while their immigration case is pending. An arrest or conviction for a crime of survival may compromise eligibility for SIJS or other immigration relief.

Runaway and Homeless Youth Services

Last year, BDS represented over 270 homeless clients under age 25. Each year public defenders in Brooklyn serve around 500 homeless 16- and 17-year-olds alone, a vast majority of whom are not being served by RHY providers because of the lack of services in Brooklyn. About half of the youth are made homeless by the criminal justice system when the court issues an order of protection against the youth for 90 days after a criminal allegation involving a domestic disturbance, making it illegal for the young person to return home.[6] The other half disclose to their defense team that they are living with friends or significant others because of a breakdown of the relationship with their parents.

RHY shelters are permitted by the New York State Office of Children and Family Services (OCFS) and run with the New York City Department of Youth and Community Development (DYCD). Young people who access RHY services are eligible for 2 types of shelter: crisis shelter for 60-120 days and transitional independent living (TIL) shelter for up to 24 months. Additionally, drop in centers are available in each borough where youth can access services such as case management, legal assistance, and mental health and medical care.

RHY providers report that they serve over 1,000 youth from Brooklyn per year (at facilities almost exclusively located in Manhattan). We estimate that Kings County would need at least 300 crisis shelter beds to ensure that no Brooklyn youth was forced to sleep on the street, sleep on the train, couch surf, or trade sex for shelter.[7]  Currently, there are only 28 beds for youth in Brooklyn and no beds for youth who do not identify as LGBTQ.

Special Immigrant Juvenile Status

Special Immigrant Juvenile Status is a path to Green Card status available to many young people living in the US. Youth must meet five criteria to qualify, (1) be under the age of 21; (2) be living in the United States; (3) be unmarried; (4) have a valid juvenile court order which finds that the child is a dependent of the court or state or that the child has experienced abuse, abandonment, or neglect; and (5) it is not in the child’s best interest to return to their country of origin.

Once a young person is connected to an immigration attorney, they must work together to prepare their case and find a sponsor guardian who can sponsor the young person. Then, the case is filed in Family Court for guardianship. In my experience, this court proceeding can take as little as 3 months but in some courts takes up to a year. After establishing guardianship, an immigration case for SIJS must be filed. This process takes about one and a half years for youth from countries with smaller numbers of immigrants, but for youth from Mexico, El Salvador, Guatemala, and Honduras the process can take up to 4 years. From the time a young person first walks into my office to the time they receive their green card based on SIJS status, over 5 years may have passed.

Recommendations

Provide more safe shelter space and respite centers for RHY youth in Brooklyn

The vast majority of runaway and homeless youth must seek crisis shelter beds in Manhattan where they are too often turned away for lack of beds. Runaway and homeless youth have been made homeless by failures of the education system, juvenile and adult criminal legal systems, the family court and foster care systems, and adults who have failed to properly care for them. The City can and must address the youth homelessness crisis by opening youth crisis shelters in Brooklyn, the Bronx, Staten Island, and Queens.

Provide reimbursement for capital investments to RHY service providers to allow them to open crisis shelters in the outer boroughs

We have been told that RFY providers are unable to open new crisis shelters in boroughs like Brooklyn because the City currently does not fund capital investments.[8] The City should assist RHY providers to locate and secure bed space in Brooklyn as landlords are often reluctant to lease to shelter providers. Even better, the City could renovate existing City buildings such as old hospitals or schools for this purpose and then issue RFP contracts for use of these spaces. The availability of high-quality services is critical to the ability of New York’s homeless youth to break the cycle of homelessness and court involvement.

End Broken Windows Policing                                                                                      

The legacy of broken windows policing is that low-income people of color in certain New York City neighborhoods are disproportionately targeted by police for arrest for conduct that would not result in any police interventions for others. For homeless and LGBTQ youth, interactions with police are commonplace. Arrests for low-level offenses may flag young people for deportation, and convictions can preclude immigrant youth from immigration relief or make those with lawful status deportable.

Limit information sharing between city agencies and ICE

Young people applying for Special Immigrant Juvenile Status must have a family member or other close adult appear in Family Court to be granted guardianship or custody over the young person. Some Family Court judges and referees require that the proposed guardians and all other adults in the household be fingerprinted as a pre-requisite to being granted guardianship. Others will waive this requirement when good cause is shown. There is no statutory fingerprinting requirement for guardians of the person pursuant to Family Court Act § 661(a) and SCPA 1704(8). These fingerprint checks can result in ICE enforcement against the young person’s family members. We encourage all New York City judges and referees to reconsider making these fingerprint checks mandatory in all guardianship cases.

Introduction 480-2018

Intr. 480-2018 would amend the administrative code of the City of New York to require DYCD to create and implement a plan requiring RHY service providers to identify youth who may qualify for SIJS or other immigration relief, assist these youth in obtaining legal services, and track youth until the completion of their immigration cases.

We support the effort to ensure that all eligible young people obtain these essential services, but we believe that this bill is the wrong approach and we respectfully request an opportunity to engage with Council staff, service providers and other stakeholders to determine the best way forward.

Systems to track SIJS eligible RHY through their immigration process may compromise youth confidentially and, due to the length of immigration cases, may be impractical. If enacted, great caution must be used to respect client confidentially while information is shared between RHY service providers, DYCD, and the Council.

Additionally, monitoring and reporting on case outcomes will be difficult, as 5 years may pass before a youth receives permanent residence through SIJS. RHY may stay in transitional independent living programs for up to 24 months, but average young person stays in a crisis shelter for only 21-60 days.

Conclusion

We applaud the City Council for your commitment to run away and homeless youth and immigrant communities in New York City, and believe more must be done to identifying youth who may qualify for SIJS status. Due to lack of beds, many young people are turned away when seeking housing and may never receive a screening. These youth will continue to fall through the cracks. In order to prevent this, there should be free, voluntary, and confidential Know Your Rights trainings and immigration clinics set up for youth and their families in their communities, schools and in hospitals. These programs can help to identify young people who need help and connect them with legal services.

We encourage the City Council to further invest in housing for young people and continue to support agencies like ours that provide free immigration services to New Yorkers.  Thank you for your time and consideration of this important issue.

 

 

 

[1] Root Cause, New York State Report: Education and youth Development, Improving Outcomes for Homeless Youth, September 2012, available online http://www.rootcause.org/docs/Resources/Research/Improving-Outcomes-for-Homeless-Youth/Improving%20Outcomes%20for%20Homeless%20Youth-%20New%20York.pdf

[2]   Nico Sifra Quintana, Josh Rosenthal & Jeff Krehely, On the Streets: The Federal Response to Gay and Transgender Homeless Youth, June 2010, available at  https://www.americanprogress.org/issues/lgbt/reports/2010/06/21/7983/on-the-streets/

[3] Coalition for the Homeless, New York City Homelessness: The Basic Facts, September 2018, available online at http://www.coalitionforthehomeless.org/basic-facts-about-homelessness-new-york-city/

[4] Migration Policy institute, Deferred Action for Childhood Arrivals (DACA) Data Tools: DACA-Eligible Populations by State and County, 2016, available at http://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles.

[5]  The Equity Project, LGBT Youth & Juvenile Justice, 2014. Available at http://www.equityproject.org/wp-content/uploads/2014/12/ACT4JJ-LGBT-Fact-Sheet-November-2014.pdf

[6] As a matter of practice in Brooklyn, prosecutors regularly ask for and judges regularly issue a full order of protection in cases involving “domestic violence,” even though these are normal disputes between teenagers and their parents. Full Orders of Protection, in effect, usually render our young clients homeless. In contrast, in New Jersey, when EMT’s respond to a domestic disturbance involving a youth, they take the youth to the Emergency Room rather than arresting them. If NYC were to adopt this approach 250 youth in Brooklyn every year would avoid court-mandated homelessness.

[7] Testimony of Amy Albert, Presented before the New York City Council Committee on Juvenile Justice and the Committee on Justice System Oversight hearing on NYC’s Preparedness to Raise the Age, April 18, 2018.

[8] Please see our previous testimonies before the City Council, available on the Brooklyn Defender Services website at www.bds.org/#policy.

 

News

BDS TESTIFIES BEFORE THE NYC COUNCIL ON IMMIGRATION & YOUTH SERVICES OVERSIGHT HEARING ON ABOLISHING ICE

TESTIMONY OF:

 

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committees on Immigration and Youth Services

Oversight Hearing on Abolish ICE

Int. 1092-2018 & Resolution on Abolish ICE

 

September 6, 2018

 

Introduction

My name is Nyasa Hickey. I am a Supervising Attorney of the Immigration Practice at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the Abolish ICE movement and the many ways that Immigration and Customs Enforcement (ICE) actively harms New York City and our immigrant communities.

Brooklyn Defender Services (BDS) is a full-service public defender office in Brooklyn, representing nearly 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. We are a Board of Immigration Appeals-recognized legal service provider.

BDS strongly supports the Abolish ICE movement. The civil and human rights violations perpetrated by ICE against immigrants and people of color are longstanding and well-documented.[1] But we believe that our immigration system requires a complete overhaul in order to end these abuses. Simply initiating a bureaucratic reorganization of ICE is not sufficient. We call on the City Council to join with us to demand a fundamental transformation of our immigration system to one that recognizes the humanity of all people and that upholds the values of equal justice and due process for all.

Dismantling of the current immigration system will require a different Congress and President committed to true reform. Until this transformation becomes a political reality, we urge the Council to proceed with caution in determining which temporary measures to support. In particular, we will focus our testimony below on the harm that closing down New York City-area detention centers would have for our clients and their families. We look to the Council for your support in this advocacy work.

The New York City Council has led the nation in efforts to protect and support immigrant communities. The first-in-the-nation public defender program for detained immigrants facing deportation, the New York Immigrant Family Unity Project (NYIFUP), is a model for legal services provision that is now being replicated in jurisdictions across the country.[2] NYIFUP representation has resulted in a 1,100% increase in the success rate for NYIFUP clients, as compared to New York City residents facing deportation prior to NYIFUP. Since the project’s inception in 2013, NYIFUP has reunified more than 750 people with their families and helped more than 400 New Yorkers gain or maintain work authorization by winning their immigration cases. The Vera Institute of Justice projects that these successful outcomes will produce tax revenue from this cohort of NYIFUP clients of $2.7 million each and every year, for years to come.[3] In addition, the City invests millions of dollars every year for additional immigration legal services, English language lessons, citizenship outreach and education, and other programming that support the success of immigrant New Yorkers.

And yet despite these significant investments from the City, immigrant New Yorkers face increased risk of targeting and apprehension by ICE. First, we lay out the history of ICE and modern immigration policy to give the Council context about the system that our clients currently face. We then lay out many of the problematic practices that we see in New York City on a daily basis. Next we describe ways that the Council can advocate for fundamental system change while minimizing harm to New Yorkers currently caught up in the immigration deportation system. Finally, we offer our support for the two measures currently before the Council today.

Background

In the wake of 9/11, the U.S. Department of Homeland Security was formed to oversee “immigration enforcement actions to prevent unlawful entry into the United States and to apprehend and repatriate aliens who have violated or failed to comply with U.S. immigration laws.”[4]Within DHS, Immigrations and Customs Enforcement (ICE) is responsible for immigration enforcement, detention, and removal.  While abuses by ICE have garnered national attention, our country has a long and troubled history of persecuting immigrants. In our support of Abolish ICE, we also urge the City Council to support comprehensive immigration reform which is necessary to create humane immigration policies.

Historically, immigration policies addressed the civil process of determining who was eligible to cross borders or reside in the United States.[5] The Reagan administration ushered in rhetoric of equating noncitizens with crime, relying on prejudice and stereotypes about immigrants present in this country from the United States’ earliest days.[6] As tough on crime policies of the 1980s led to prison crowding, noncitizens increasingly became a scapegoat; the Reagan administration promoted anti-immigrant rhetoric focused on falsehoods such as immigrants’ economic burden on the citizen taxpayers a result of their presence in prisons, schools, and hospitals.[7] The Reagan administration passed the Anti-Drug Abuse Act[8] and the Immigration Reform and Control Act[9], which expanded grounds for deporting noncitizens with drug conviction and created as system for deporting any noncitizens following prison sentences.[10] These laws created a narrative that centered immigrants in discussions of drug use and crime, though immigrants were actually arrested at lower rates than citizens—which still holds true today.[11] This conceptual shift in the collective view of immigrants as criminal paved the way for more restrictive immigration laws.

The Immigrant Justice Network and NYU School of Law report Dismantle, Don’t Expand: The 1996 Immigration Laws outlines how three major bills passed and signed into law by President Clinton laid out the framework for ICE as we know it today.[12] First, the Antiterrorism and Effective Death Penalty Act[13] (AEDPA) “expanded the criminal grounds for deportation, limited relief from removal, restricted judicial review, and expanded mandatory detention.”[14] Second, the Personal Responsibility and Work Opportunity Reconciliation Act[15] barred immigrants from federal public benefits and allowed state and local government to impose additional restrictions.[16] Finally, the Illegal Immigration Reform & Immigrant Responsibility Act[17] (IIRIRA) created sweeping changes to immigration law. IIRIRA expanded the grounds for mandatory detention and removal, limited access to discretionary relief from removal, restricted avenues for relief from deportation and detention, authorized cooperation between federal immigration local law enforcement, and created funding for additional. [18] Additionally, IIRIRA created income requirements for citizens trying to sponsor family members, created a provision to prevent poor immigrants who may become a “public charge,” and created multiyear bars from re-entry following deportation.[19] These bills disproportionately impacted low-income immigrants of color. Broken Windows policing, as operationalized by the NYPD starting in the early 1990s, almost exclusively targeted people of color, new immigrants and other socially and economically marginalized groups.[20]  For noncitizens, a single interaction with local law enforcement may trigger immigration detention and deportation.[21]

Following the passage of IIRIRA, the negative impact on immigrant families became clear. Income requirements to sponsor family members, mandatory bars on returning to the U.S. after deportation, and mandatory detention following deportation orders penalized dual-status families, long term residents and green card holders. Calls to reform this legislation (“Fix ‘96”) gained bipartisan support, including from the bill’s sponsor Rep. Lamar Smith.[22] The campaign centered the need to “amend IIRIRA’s provisions concerning retroactive deportations, constraints on judicial review, mandatory detention, the use of secret evidence, and expedited removals.”[23]

These efforts, however, were largely forgotten in the wake of 9/11. Following the terror attacks, the IIRIRA provisions which allowed for quick detention and deportation were again seen as keeping America safe. Widespread fear of crime and distrust of immigrants allowed Congress’s creation of DHS and ICE. Since September 11, 2001, we have seen the traumatic impact of enforcing IIRIRA. In particular, over the last few months, the public has become aware of the lived reality of ICE’s impact on immigrant individuals, families, communities and human rights principles.  ICE is tearing apart families, deporting parents and spouses, and destabilizing low-income communities of color. In addition to calls to Abolish ICE, we encourage the City Council to work to create a humane immigration system that restores due process rights, allows judicial discretion, and treats immigrants with dignity.

 ICE’s Ramped Up Enforcement in New York City Immigrant Communities

The impact of enforcement policies at the federal level are felt every day by our immigrant clients, their families and New York City communities. The mass separation of parents and children at the border this spring and summer were one of the most publically visible and shocking example of the agency’s actions, but their cruel and illegal enforcement tactics harm people in New York City, too. We have written about all of these practices at length in previous testimony[24], but list many of ICE’s most pernicious practices here:

  • Arrests
    • Increased ICE arrests in and around city courthouses, limiting access to the court system[25]
    • Increased home and workplace raids in the community[26]
    • Reliance on ruses and other nefarious means to lure targets into ICE custody[27]
    • Effectuating arrests or entering private homes without judicial warrants[28]
    • Racial profiling, including relying on unsubstantiated gang allegations[29]
    • Detaining people at Order of Supervision (OSUP) check-ins[30]
    • Re-arresting people who have won relief in immigration court but have not yet received their visas or green cards[31]
  • Court Appearances
    • Abolishing in-person appearances at Varick Street Courthouse and requiring detained people to appear in court via Video Teleconferencing (VTC)[32]
    • Failing to produce detained people for state court proceedings where writs are issued by the courts or prosecutors to ensure their appearance
  • Detention
    • Sub-standard detention conditions for detained immigrants
      • Insufficient access to medical care and mental health treatment[33]
      • Insufficient or spoiled food[34]
      • Damaged and insufficient clothing and hygiene products[35]
    • Lack of access to programming and other supports
    • Lack of sufficient language services to facilitate communication with non-English-speaking detained people

Other actors in the immigration deportation system also frequently violate our clients’ rights, and our concerns about their actions are listed in previous testimony before this committee. The combined effect of these injustices are that our clients are increasingly likely to be targeted for enforcement or swept up in mass raids, held for months of years without bond in horrible  detention conditions. All of this occurs on top of harsh and unfair laws like IIRIRA that disproportionately punish low-income people of color.

Urge Caution

Because of all of the harmful practices, policies and laws that we listed above, we urge the Council to remain committed, first and foremost, to advocating for reform that will not harm impacted communities. Robust funding for immigration legal services like NYIFUP are critical to keeping families together and we urge you to maintain and increase your financial support.

Brooklyn Defender Services has very serious concerns about the impacts of closing immigration detention facilities in Hudson, Essex and Bergen Counties in New Jersey on the people we represent. Local news outlets have recently reported on efforts by New Jersey residents to urge their local legislators to end detention contracts with ICE.[36] Ending mass immigration detention – or any immigration detention at all – is paramount, but simply closing these facilities, where detained people have access to free representation through NYIFUP will result in grave consequences for detained immigrants and their families.

If the New Jersey detention facilities end their contracts with ICE, New Yorkers arrested by ICE will be shipped off to distant facilities, perhaps several states away to rural areas. Outside of the New York City area and Varick Street Immigration Court, they will not have access to their families or a NYIFUP attorney. Families play a critical role in supporting detained people during the pendency of their case. The presence of a detained person’s spouse, children and close family friends not only build up their loved one’s morale, they also are frequently critical witness or are able to collect evidence essential to prove a detained person’s legal claim to remain in the U.S. with their family.

In New York City, NYIFUP representation, in which BDS is one of the three providers, has increased the likelihood of detained people winning their cases by a factor of 12 – from 4% to 48%. In addition to saving people from deportation, family dissolution, and worse, this program has shown that nearly half of the people arrested and detained by ICE have a legal claim to remain in their homes and communities here under the law.

NYIFUP achieves these incredible success rates because NYIFUP provides detained people with experienced and highly qualified deportation attorneys in immigration court. We are also funded by the Council to provide investigators, trained forensic social workers, expert witnesses, re-entry services, connections to rehabilitative programs and services, legal assistance from any of our other practice areas (including criminal defense, family defense and civil legal services) and federal court litigation expertise. These wraparound and inter-disciplinary advocacy and support will be lost to all detained people who are transferred far from New York City, effectively undercutting the Council’s efforts to provide the right to counsel and due process to its residents.

Our concerns are not hypothetical: ICE detainees were transferred en masse from the San Francisco Bay Area after Contra Costa County ended its contract with ICE.[37] An ICE spokesperson spoke unequivocally that advocates should have anticipated this result:

“When we were notified of the decision, ICE made it abundantly clear in July that it would have to now rely on its national system of detention bed space to house detainees. When ICE is not allowed to work with local jurisdictions to house detainees closer to their families, friends and attorneys, farther facilities must be utilized.”[38]

We recommend that the Council work with your counterparts in New Jersey (the Hudson, Bergen and Essex County Freeholders) and urge them to continue their contracts with ICE while improving conditions for detainees, including improving access to medical care, visitation and other measures. We also ask that you encourage Freeholders to require that jails identify people in immigration detention who have upcoming court dates so that NYIFUP can go to the facilities prior to the first court date to do screenings and intake, a process that has been fundamentally undermined since ICE has decided not to bring detained people to their hearings at Varick Street Immigration Courthouse. These and other informed advocacy efforts in collaboration with service providers such as NYIFUP could go a long way towards supporting immigrant New Yorkers and ensuring they are able to take advantage of NYIFUP representation.

Intro 1092 – Prohibiting NYC from Contracting with Entities Engaged in Immigration Enforcement

BDS strongly supports Int. 1092, a Local Law to amend the Administrative Code of the City of New York, in relation to prohibiting New York City from contracting with entities engaged in immigration enforcement. Documented recently reported that the city currently has two contracts with ICE totaling close to $500,000 to allow ICE agents access to the NYPD firing range and parking for the ICE New York field office.[39] The two contracts in particular only serve to facilitate ICE arrests in immigrant communities across the city. For all of the reasons articulated earlier in our testimony, BDS calls on New York City to immediately end all contracts with ICE.

Resolution on Federal Bill H.R. 6361 – Establishing a Humane Immigration Enforcement System Act

New York City Council Resolution 2018-2722 (preconsidered) calls on the federal government to pass the Establishing a Humane Immigration Enforcement System Act (H.R. 6361). The bill would establish a Commission tasked with establishing a humane immigration enforcement system, terminate Immigration and Customs Enforcement, and officially document the long history of abuses perpetrated by ICE.

While BDS supports many of the goals of HR 6361, we believe that it falls short in rectifying the harm caused by ICE because it would not repeal IIRIRA, significantly reduce funding for immigration enforcement, or increase due process protections for immigrants. We urge the Council to go a step further and urge Congress to make these changes, as well. Simply abolishing ICE, as we noted above, will not end the harm perpetrated by the federal government against our immigrant communities.

  • Conclusion

Thank you for inviting me to testify and for considering my remarks today.

Please reach out to Andrea Nieves, Senior Policy Attorney at anieves@bds.org or 718-254-0700 ext. 387 if you have any additional questions.

 

[1] See, e.g., American Civil Liberties Union, ICE and Border Patrol Abuses, available at https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses.

[2] Learn more at Vera Institute of Justice, SAFE Cities Network, https://www.vera.org/projects/safe-cities-network.

[3] Vera Institute of Justice, Report Summary: Evaluation of the New York Immigrant Family Unity Project: Assessing the Impact of Legal Representation on Family and Community Unity (Nov. 2017), available at https://www.vera.org/publications/new-york-immigrant-family-unity-project-evaluation.

[4] Bryan Baker, Immigration Enforcement Actions: 2016, Department of Homeland Security Annual Report (Dec. 2017), available at https://www.dhs.gov/immigration-statistics/enforcement-actions

[5] D’Vera Cohn, How US Immigration Laws and Rules Have Changed Through History, Pew Research Center RSS, (Sep. 2015), available at http://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/

[6] See, e.g., Kenneth C. Davis, Anti-Immigrant Rage Is Older than the Nation Itself, NPR, May 25, 2010, available at https://www.npr.org/templates/story/story.php?storyId=126565611.

[7] Donald Kerwin, From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis, Journal on Migration and Human Security, (2018).

[8] Pub. L. No. 99-570, 100 Stat. 3207 (1986.)

[9] Pub. L. No. 99-603, 100 Stat. 3349 (1986).

[10] Patricia Macías-Rojas, Immigration and the War on Crime: Law and order politics and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. J. on Migration & Hum. Sec., 6, 1, (2018).

[11] Robert Adelman, et al., Urban Crime Rates and the Changing Face of Immigration: Evidence Across Four Decades, Journal of Ethnicity In Criminal Justice. 15 (2016).

[12] Bobby Hunter & Victoria Lee, Dismantle, Don’t Expand: The 1996 Immigration Law, Immigrant Justice Network and NYU School of Law Immigrant Rights Clinic, (2017). available online at https://www.immigrantdefenseproject.org/wp-content/uploads/1996Laws_FINAL_Report_5.10.17.pdf

[13] Pub. L. No. 104-132, 100 Stat. 1214 (1996).

[14] Cohn, How US Immigration Laws and Rules Have Changed Through History.

[15] Pub. L. No. 104-193, 110 Stat. 2105 (1996).

[16] Hunter & Lee, Dismantle, Don’t Expand.

[17] Pub. L. No. 104-208, 110 Stat. 3009-546 (1995)

[18] Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L Rev. 367 (2006).

[19] Kerwin, From IIRIRA to Trump.

[20] Statement of Shawn Blumberg, Broken Windows Policing and Protecting Immigrant New Yorkers, Feb. 21, 2017 available online at http://bds.org/wp-content/uploads/2017.2.21-Statement-by-Brooklyn-Defender-Services-on-Broken-Windows-Policing.pdf

[21] Hunter & Lee, Dismantle, Don’t Expand.

[22] Macías-Rojas, Immigration and the War on Crime.

[23] Id.

[24] Please see our previous testimonies before the City Council, available on the Brooklyn Defender Services website at www.bds.org/#policy.

[25] See, e.g., Immigrant Defense Project, Press Release: IDP Unveils New Statistics & Trends Detailing Statewide ICE Courthouse Arrests in 2017, available at https://www.immigrantdefenseproject.org/wp-content/uploads/ICE-Courthouse-Arrests-Stats-Trends-2017-Press-Release-FINAL.pdf.

[26] Immigrant Defense Project, ICEwatch: ICE Raids Tactics Map (July 2018), available at https://www.immigrantdefenseproject.org/wp-content/uploads/ICEwatch-Trends-Report.pdf.

[27] Id.

[28] Id.

[29] Kavitha Surana, How Racial Profiling Foes Unchecked in Immigration Enforcement, ProPublica, June 8, 2018, available at https://www.propublica.org/article/racial-profiling-ice-immigration-enforcement-pennsylvania.

[30] Saenz, March 15, 2017.

[31] Testimony of Andrea Saenz, Presented before the New York City Council Committee on Immigration Oversight Hearing on the Impact of New Immigration Enforcement Tactics on Access to Justice and Services, March 15, 2017.

[32] Testimony of Nyasa Hickey, Presented before the New York City Council Oversight Hearing on the Impacts of the Trump Administration Family Separation Policy on New York, July 12, 2018;

[33] New York Lawyers for the Public Interest, Detained and Denied: Healthcare Access in Immigration Detention (2017), available at http://www.nylpi.org/wp-content/uploads/2017/02/HJ-Health-in-Immigration-Detention-Report_2017.pdf.

[34] Human Rights First, Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention (Feb. 2018), available at https://www.humanrightsfirst.org/sites/default/files/Ailing-Justice-NJ.pdf.

[35] Id.

[36] Matt Katz, Religious Leaders Sue to End Hudson County’s ICE Contract, WNYC News, August 26, 2018, available at https://www.wnyc.org/story/religious-leaders-sue-end-detention-ice-immigrants-hudson-county-jail/.

[37] Tatiana Sanchez, Transfers of Contra Costa ICE Detainees Spark New Concerns, The Mercury News, Aug. 24, 2018, available at https://www.mercurynews.com/2018/08/24/transfers-of-contra-costa-ice-detainees-spark-new-concerns/.

[38] Id.

[39] Felipe De La Hoz, Exclusive: City Council Bill Calls for Ban on All Contracts With ICE, Documented, Aug. 28, 2018, available at https://documentedny.com/2018/08/28/exclusive-city-council-bill-calls-for-ban-on-all-contracts-with-ice/.

News

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEES ON CRIMINAL JUSTICE & WOMEN OVERSIGHT HEARING EXAMINING SEXUAL ABUSE AND HARASSMENT IN CITY JAILS

TESTIMONY OF:

Kelsey De Avila, LMSW – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Criminal Justice and Women

Oversight Hearing Examining Sexual Abuse and Harassment in City Jails 

September 6, 2018

My name is Kelsey De Avila, and I am a Jail Services Social Worker at Brooklyn Defender Services.  Thank you for this opportunity to address the Council on the sexual abuse and sexual harassment that too many of our clients suffer in our city jails. BDS provides comprehensive public defense services to more than 30,000 people each year, thousands of whom are detained or incarcerated in the city jail system either while fighting their cases or upon conviction of a Misdemeanor and a sentence of a year or less. BDS’ Jail Services Division provides supportive services and direct advocacy on behalf of our clients in Department of Correction (DOC) custody. This testimony is composed primarily of the accounts of our clients whose voices are underrepresented at today’s hearing.

There should no longer be any question that rape and sexual violence are real and serious problems in our jails that demand attention. Whether a person is detained pre-trial and presumed innocent, as is the majority of the population in city jails, or enduring incarceration as a punishment or perhaps awaiting transfer to upstate prisons, they are New Yorkers – sons, daughters, mothers, fathers, cousins, friends, and neighbors. Yet they are often called “packages” or worse by DOC staff, and treated accordingly. We continue to urge the City to end the inhumane treatment of incarcerated New Yorkers and close the jails on Rikers Island. If the City cannot keep people in its custody safe, policymakers in all levels of government should question whether such custody should even be permitted.

The ‘Deep-Seated Culture of Violence’ at DOC Includes Sexual Violence

On August 4, 2014, the U.S. Attorney’s Office for the Southern District of New York (USAO SDNY) issued a report to DOC regarding its Civil Rights of Institutionalized Persons Act (CRIPA) investigation of the jails on Rikers Island. The investigation infamously found a “deep-seated culture of violence [that] is pervasive throughout the adolescent facilities.” However, directly impacted people, attorneys and social workers who serve them, and indeed the Department itself all know that this culture extends throughout the City’s jail system, and includes sexual violence. (In a footnote, the report noted that the investigation did not focus on sexual assault, but raised concerns that DOC was underreporting it.)[1] A former federal jail warden and then-member of the Board of Correction (BOC) once said in a public meeting, in regards to staff sexual assault at Rikers Island, “As long as we are going to have prisons we are going to have sexual abuse in prisons.”[2] A Department of Justice survey found that, on any given day, 50 of the 800 people held at the Rose M. Singer Center (Rosie’s) were being sexually victimized the staff, making it one of the worst jails for such abuse in the country.[3] (The daily population at Rosie’s is now closer to 530.) Nevertheless, in each and every news article about an allegation of sexual misconduct by DOC staff, the agency’s response invariably includes its supposed “zero tolerance” policy. Whatever the policy, in practice, the DOC fails to protect people and hold officers accountable.

According to a June 2018 report by the agency, allegations of sexual abuse and sexual harassment increased by nearly 40% from 2016 to 2017 (823 to 1151), which the agency attributes to improved reporting mechanisms and other reforms implemented as part of an effort to comply with the federal Prison Rape Elimination Act (PREA). We do not accept this explanation as fact, given the enormous increase in reports amidst declining overall admissions and average daily population. Even so, staff sexual misconduct and harassment comprise 70% of these allegations. Allegations of staff sexual misconduct increased approximately 16% (322 to 374) and allegations of staff sexual harassment increased approximately 86% (232 to 432) during this period. At the time of the report, of the 823 allegations in 2016, the agency had only found three incidents to be substantiated. The vast majority of investigations (739) remained pending. In 2017, though the number of allegations increased, only one incident had thus far been deemed substantiated.  1112 investigations remained pending at the time of the report.[4]

This should be disturbing to the Council: Over a thousand cases are still pending, and DOC staff are allowed to remain employed despite pending allegations, and no action will be taken against them until the case is officially closed. Notably, our detained clients are subject to extremely punitive treatment and conditions – and exposed to this epidemic of sexual violence – while they fight criminal allegations against them.

Mr. C’s BDS attorney referred him to me after learning an officer had denied him food.  When I met with Mr. C, he reported that the officer denying him food was the same officer who, during a separate incarceration a couple of years ago, watched and encouraged the brutal rape of Mr. C by three other incarcerated men inside the bathroom of his dorm. Mr. C has since undergone surgery to repair the tissue damage done to him that night and has made multiple attempts at suicide by swallowing razors. Two years later, Mr. C was in the custody of the same officer. The officer remembered Mr. C and shared with other residents of the unit that Mr. C was raped repeatedly and would only address him as ‘pussy’ and ‘faggot’. Other staff regularly witnessed these comments but did not intervene. We reported the abuse to DOC and requested Mr. C’s immediate transfer to another unit, and were able to secure his release within a couple days. This officer continued to work for DOC following the incident.

DOC’s Failure to Comply with Minimum Standards

In 2016, pushed by survivors of Rikers Island, other activists, public defenders, and Office of the Public Advocate, the BOC adopted new rules to “detect, prevent, and respond to sexual abuse and sexual harassment” in City jails. One of the new rules, for which we and others fought, was a requirement that DOC install security cameras on in its buses, where people in custody are particularly vulnerable, as part of a one-year pilot program. The Department had roughly two years to meet its obligations, including providing a written report on the efficacy of the pilot by September 1, 2018. (The pilot itself was to be instituted by July 31, 2017.)[5] As of this writing, DOC is in violation of this rule and recently requested a variance to allow for an extension of the deadline while it works to install cameras in one single bus.[6] The Council should note that BOC’s rule referred to the plural form of “vehicles” – not one bus.

Another BOC rule requires DOC to complete all investigations of sexual abuse and sexual harassment allegations no later than 90 days from the Referral Date, absent extenuating circumstances outside of the Department’s control.[7] Although this rule became effective on January 2, 2018, as discussed above, the vast majority of investigations stemming from 2016 and 2017 remain pending. The lack of accountability at DOC, therefore, is not limited to a few bad actors, but rather is endemic to the agency.

Earlier on the day that Ms. A was raped, she had appeared in court with her lawyer.  After her appearance, she requested to leave on the 3 pm bus back to Rikers. While she was in transit, Ms. A was raped by a male officer at the back of the bus in a parking lot on Rikers Island, all while the driver of that bus sat and watched.  When she reported the incident, the bruises on her wrists and thighs were clearly visible. The two officers on the bus held Ms. A against her will and tortured her without anyone noticing or questioning the missing bus, the missing officers, the missing woman or why it took more than 10 hours for Ms. A to travel from court to her housing unit.

When she returned to her housing unit, a female DOC officer noticed that Ms. A was not acting herself and confronted Ms. A about her behavior. Ms. A felt safe with this female DOC officer and recounted the rape hoping for a safe way to report. In response, the female DOC officer told Ms. A that it would be safer if Ms. A reported it to her attorney, rather than the female DOC officer making a report. Ms. A took this to mean that the officer, herself, was afraid to report. Our client felt extremely vulnerable and alone during this time. Even the female DOC officer, an employee of the Department, seemed aware of the current culture of violence within DOC and unwilling or unable to fully protect the people in her custody.

We reported the rape to DOC and DOI and requested the latter, as an independent entity, investigate. We also reported it to the Bronx District Attorney’s office. For Ms. A’s safety we requested her transfer to another facility. There, she was placed in solitary confinement after spitting on an officer who was antagonizing her. To the best of our knowledge, the Bronx District Attorney’s office declined to investigate, DOI punted to DOC, and DOC’s investigation is ongoing while the officers involved continue to work for the Department.        

DOC’s Failure to Properly Investigate Allegations of Sexual Harassment and Abuse

As part of its internal reform process to comply with PREA, DOC increased the options for filing complaints, and increased staffing for the Investigations Division. Nonetheless, we have not seen a commensurate increase in protections for people in custody or accountability for staff. DOC often fails even to take interim measures after allegations are reported. For example, one of the quickest ways to help protect people from harm, or continued harm, in jail settings is to transfer them to different units or facilities. This approach does not meaningfully address the root causes of jail violence, but it is an easily accessible tool for intervention in the moment. We often find that DOC only transfers people threatened with or victimized by sexual violence when we advocate on their behalf. Mr. W, a BDS client, was an exception, but only because he took extreme measures to advocate for himself:

Mr. W was raped by another incarcerated man on his housing unit. Mr. W took proactive steps and reported the rape to 311 and his housing officer. Despite his own self-advocacy, neither he nor the other man were moved. Our client continued to report the sexual assault to DOC officers and even a DOC captain, yet still was not moved. Mr. W was raped again in the same housing unit by the same man a week later. Investigators finally interviewed Mr. W, but despite their interaction, Mr. W was not separated from the man. Mr. W. was raped again. More than two weeks later, our client spit on a DOC officer and only then was he moved to another, more restrictive housing unit.  He knew that by committing an “assault” on DOC staff, he would finally be moved. It was an act of desperation after being repeatedly failed by those in power.

Regardless of the complaint mechanism they use, our clients who report sexual harassment or abuse are visited by members of DOC’s Investigations Division, who come in plainclothes and wearing badges. Everybody inside—incarcerated people and staff alike—knows them, making people who report extremely vulnerable to retaliation. DOC regularly fails to protect them, surely dissuading others from making reports.

Sexual Abuse, Cavity Searches and Broader Corporal Control

Among the many serious and life-altering harms of incarceration in New York City is the routine sexual degradation involved in contraband searches. Often, the searches, themselves, are deliberately punitive, used by staff not as a response to a reasonable suspicion of the presence of contraband but rather to assert authority and control or to “send a message.” Incarcerated people are regularly subject to cavity searches, which are susceptible to all manner of abuse.

Mr. L reported that he was sexually abused during a routine housing search. DOC officers entered his cell, yelling, only to rough him up before he was even fully awake. One officer then held Mr. L’s head down with one hand while using the other hand to sexually abuse him. Fortunately, our client felt safe enough after the incident to call 311 to report the incident. Mr. L had difficulty defecating after the abuse and reported that he was experiencing extreme pain and bleeding. Months after the abuse, our client still reported discomfort, continues to have difficulty sleeping and trusting others around him due to the trauma of this incident. 

The Council should recognize that the epidemic of sexual misconduct exists on a continuum of corporal control that deprives and dehumanizes incarcerated people. The power dynamics that make any and all sexual conduct between staff and incarcerated people coercive under the law play out in countless other ways, as well.

During a tour of the Rose M. Singer Center on Rikers Island, Ms. M shared her difficulty in getting extra toilet paper and feminine hygiene products from DOC staff.  She shared how she would have to beg officers for assistance, only to be treated with disrespect that made her feel less than fully human and ashamed. Ultimately, the jail controls the cleanliness, health, and feelings of self-worth for all incarcerated people.

Victimization of People with Intellectual and Developmental Disabilities

It is important for this conversation to include people with intellectual and developmental disabilities. This population is at particular risk for sexual victimization, and particular attention should be paid to their needs, even beyond the intake risk-assessment. We appreciate the work Correctional Health Services has done to better screen individuals who come into the custody of the Department and augment services for all victims of jail-based sexual trauma, but we know that too many incidents go undetected only increasing these clients’ risk for abuse.

Mr. D is a young man with moderate mental retardation as well as mental health issues.  During his incarceration, he was frequently the target of extortion and harassment.  Mr. D had trouble following the rules and was disliked by many correction officers. As a result, he never felt comfortable asking for their help, even in the most extreme of circumstances.  Mr. D learned to tolerate the abuse he suffered while incarcerated until he finally told us that what he described as “horseplay” had gone too far – he was being forced to endure sexual abuse by another person in his dorm – and was being ignored or undetected by staff. When we became involved, we were able to secure Mr. D’s transfer to another unit, and eventually out of jail.  

Conflicts of Interest in DOC Investigating Itself

Executive Order 16 states, “upon receipt of any information concerning corrupt or other criminal activity or conflict of interest related to his or her agency, the Inspector General of such agency shall report directly and without undue delay such information to the Department of Investigation (DOI), and shall proceed in accordance with the Commissioner’s directions.”[8]

Staff sex abuse is criminal behavior that should always be referred to and investigated by DOI. Currently, DOC is permitted to conduct investigations of sex abuse by its own staff members, as reported by the agency at City Council hearings and Board of Correction meetings.  In our experience, reports by our clients regarding sexual abuse by a DOC staff member are referred to both agencies, but DOI generally allows DOC’s Investigation Division to conduct the investigation. This is a blatant conflict of interest and may contribute to the shockingly small number of cases referred for criminal prosecution by DOC.

The Charter of the City of New York (the City Charter) makes clear, “The jurisdiction of the commissioner [of the Department of Investigation] shall extend to any agency, officer, or employee of the city.”[9]  DOI thereby has jurisdiction to conduct investigations related to allegations of sex abuse by New York City Corrections Officers, which would resolve the abovementioned conflict of interest.  Furthermore, the City Charter requires that “upon completion of the investigation, [the Commissioner of DOI] shall also forward a copy of his [or her] written report or statement of findings to the appropriate prosecuting attorney.”[10]  Currently, there is no written policy that states what constitutes an appropriate case for DOI to defer investigations to DOC’s Investigation Division. The Council should push the agency to establish clear boundaries that would allow appropriate and thorough investigations without bias.

 

Sexual Harassment and Abuse of Visitors

Earlier this year, the New York City Jails Action Coalition (JAC) published a report, ‘It Makes Me Want to Cry’: Visiting Rikers Island, documenting the horrific experiences families, friends, and others face when visiting Rikers Island to support a loved one. The report, which is based on interviews with more than a hundred visitors, makes clear that the epidemic of sexual misconduct extends to the staff who screen visitors. The acts described in the report include being told to “show [their] underwear not only in front of officers but in front of other visitors; forced to strip down to their underwear, [told to] show COs their genitals, [forced to] suffer through inappropriate touching of their breasts and genitals, and [forced to] undergo cavity searches.”[11]

In an NBC I-Team report, Stephanie Sanchez reported that she was ordered into a bathroom in the Brooklyn House of Detention and threatened with arrest if she did not comply with an officer’s order. “By the time she was finished touching the top, like my breasts weren’t even in my bra. My bra was all the way up to my neck,’ Sanchez said. ‘She (the officer), went in, she went inside, she moved around, touched my private area. And I just had to stand there. I was in shock,” she said.

Shauntay Mayfield was also threatened that if she did not consent to the search, officers would contact ACS. “They told me, Oh, ACS is going to get involved. I know you have kids. You want to go home to them tonight?” she recounted.

BDS stands with JAC and their recommendations in order to hold the Department accountable and keep visitors safe from sexual abuse by DOC staff. As an initial step, the City Council’s Committee on Oversight and Investigations should launch an independent and transparent investigation into the allegations of sexual abuse and unlawful strip searches.

As stated in the NYC JAC report, “visiting is a crucial piece to improving reentry and decreasing recidivism, improving jail safety and the mental health of incarcerated people, and helping families who deal with the collateral consequences of incarceration to maintain ties with their loved ones.” Yet, “many visitors report that COs’ behavior as a major concern and hindrance during visits” and fear and “risk of sexual abuse during unlawful strip searches” is a major barrier to visiting. Forcing people to choose between risking exposing themselves to possible sexual abuse or not visiting a loved one is disgraceful and the City should no longer turn a blind eye to the reality of the torture we are putting the families and loved ones of incarcerated people through.

Conclusion

If the people exposed to the soaring rates of sexual harassment and abuse in City jails were treated that way by any other government agency Councilmembers and other policymakers would have long ago called for the resignation of the Commissioner as well as fundamental structural reforms, if not elimination of the agency. Abuse complaints are rising and the City has no plan to improve accountability for staff. Even with the highly-publicized incidents of sexual abuse of visitors, DOC has reported no disciplinary actions against staff. Imagine what is happening behind the gate. Hundreds of complaints languish for years without any results or immediate changes to protect victims. DOC officers, who hold the profound responsibility for the care and custody of incarcerated people and yet use their position to abuse, are still working in extremely powerful positions for the Department. The policies in place are important, but they mean very little when DOC does not enforce them. No matter what side of the gate they are on, everyone deserves to be safe from sexual harassment and abuse.  The City must finally address the underlying failures of the Department of Correction or remove people from its custody.

Thank you for your time and consideration of my comments. If you have any questions, please feel free to reach out to Jared Chausow, our Senior Policy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Jocelyn Samules et al., RE: CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island (USAO SDNY 2014), https://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY%20Rikers%20Report.pdf.

[2] Nick Malinowski, NYC Official Says Rape Is Inevitable at Rikers Island: If True, We Cannot Send Anyone There, Huffington Post, Dec. 6, 2017 at https://www.huffingtonpost.com/nick-malinowski/nyc-official-says-rape-is_b_10600320.html.

[3] John H. Tucker, Rape at Rosie’s, New York Mag., http://nymag.com/daily/intelligencer/2018/06/rape-at-rikers.html.

[4] NYC Dep’t of Corr., NYC Board of Correction Sexual Abuse and Sexual Harassment Minimum Standards 5-40 Assessment Report (2018), https://www1.nyc.gov/assets/doc/downloads/pdf/Annual-Sexual-Abuse-and-Sexual-Harassment-Assessment-Report.pdf.

[5] NYC Bd. of Corr., Notice of Adoption of Rules (2016), https://www1.nyc.gov/assets/boc/downloads/pdf/Jail-Regulations/Rulemaking/2016-PREA/PREA%20Rules%20-%20FINAL%20FOR%20POSTING%2011.10.16%20w%20certification.pdf.

[6] NYC Dep’t of Corr., Letter to NYC BOC re: Minimum Standards §5-04(g) “Supervision and Monitoring” – Transport Vehicle Camera Pilot Program and Written Report (2018), https://www1.nyc.gov/assets/boc/downloads/pdf/Meetings/2018/September-14-2018/NYC%20Department%20of%20Correction-BOC%20Sexual%20Abuse%20and%20Sexual%20Harassment%20Minimum%20Standards%20-%205-04%20-%20Transport%20Vehicle%20Camera%20Pilot%20and%20Report.pdf.

[7] NYC Bd. of Corr., Notice of Adoption of Rules (2016), https://www1.nyc.gov/assets/boc/downloads/pdf/Jail-Regulations/Rulemaking/2016-PREA/PREA%20Rules%20-%20FINAL%20FOR%20POSTING%2011.10.16%20w%20certification.pdf.

[8] NYC Executive Order 16 Section 4(e)

[9] Charter of the City of New York, Chapter 34 § 803(d)

[10] Id. § 803(c)

[11] NYC Jails Action Coal., ‘It Makes Me Want to Cry’: Visiting Rikers Island (2018), http://nycjac.org/wp-content/uploads/2018/01/VISITING-RIKERS-ISLAND-JAILS-ACTION-COALITION-1.9.18.pdf.

BDS TESTIFIES BEFORE THE NYC COUNCIL OVERSIGHT HEARING ON THE IMPACTS OF THE TRUMP ADMINISTRATION FAMILY SEPARATION POLICY IN NYC

TESTIMONY OF:

 

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Oversight Hearing on the Impacts of the Trump Administration Family Separation Policy on New York City

July 12, 2018

 

Introduction

My name is Nyasa Hickey. I am a Supervising Attorney of the Immigration Practice at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the work that legal service providers across New York City, including Brooklyn Defender Services, are doing to assist families harmed by the Trump Administration’s Family Separation Policy. I will also speak about the ramifications of the policy on New York City residents with pending immigration cases.

BDS is a full-service public defender office in Brooklyn, representing nearly 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. We are a Board of Immigration Appeals-recognized legal service provider.

Our immigration practice consists of more than 40 staff that work in three distinct teams that handle different aspects of immigration law:

  • The BDS Padilla Team advises BDS’s criminal defense and family defense attorneys and their noncitizen clients on the immigration consequences of a guilty plea to help avoid or minimize negative immigration consequences. About a quarter of BDS’s 30,000 criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or loss of opportunity to obtain lawful immigration status as a result of their criminal case. Our criminal-immigration specialists provide support and expertise on thousands of cases, including Padilla advisals, advocacy regarding enforcement of the NYC detainer law, as well as with ICE officials to secure the release of our clients while charges are pending against them.
  • The New York Immigrant Family Unity Project (NYIFUP) is the New York City Council-funded first-in-the-nation program providing counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders and The Legal Aid Society. Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 1,000 people in deportation proceedings. Jointly the NYC NYIFUP providers have won release from ICE custody for over 900 clients and won the cases of over 500 clients, with hundreds of cases still pending. The Vera Institute of Justice’s comprehensive November 2017 study found that 48% of NYIFUP cases end successfully – a 1,100% increase from the rate for unrepresented cases before NYIFUP.
  • BDS’ Immigrant Youth and Communities Team has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in non-detained removal proceedings, including motions to reopen. Highlights of our work include representing young clients in their pursuit of Special Immigrant Juvenile Status (SIJS) or Deferred Action for Childhood Arrivals (DACA) and working with Haitian and Central American New Yorkers to file or renew applications for Temporary Protected Status (TPS). We regularly provide Know Your Rights trainings for the community, including information on encounters with ICE and family preparedness planning. We also produced four short animated films as part of a national empowerment campaign called We Have Rights that informs community members how to prepare for and safely defend their rights during encounters with ICE.[1]

Background

On May 5, 2018 U.S. Attorney General Jeff Sessions instituted an official zero tolerance policy for people who enter or attempt to enter the U.S. without prior authorization. The federal government’s new policy was to prosecute people crossing the U.S.-Mexico border with illegal entry and separate the adults from any children traveling with them.[2] In fact, the policy was the continuation of a 2017 pilot program separating migrant families. NBC News reported last month that 1,786 children were separated from their parents between October 2016 and February 2018, with an additional 2,342 children separated from their parents after the zero tolerance policy went into effect.[3] In June, in response to massive and unified public pressure to rescind the policy, the President issued an Executive Order rescinding his prior policy of separation, instead ordering the Secretary of Homeland Security to “maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.”[4] In short, the Administration would continue to pursue a zero tolerance approach, but would detain families and children in camps together, not separately.

A week later, a federal judge in California ordered U.S. immigration authorities to reunite separated families on the border within 30 days and families with children younger than age five within 14 days.[5] The administration failed to make the first deadline and seems unlikely to make the second. The administration stated last week that they have a list of nearly 3,000 children who might have been separated but they are still trying to figure out exactly which ones had parents taken away.[6] In the wake of the court order to reunite separated families, the Trump administration stated that they plan to release the majority of families on ankle bracelet monitoring rather than detain the migrant children and parents together.[7]

We are already feeling the effects of the Administration’s policy change here in New York City. Just yesterday, BDS helped reunify a family at the request of a partner legal services provider in Texas. This simple matter of bringing a mother together with her children, who had been housed in a NYC facility, took a full two days because of utter incompetence and lack of concern by immigration authorities for these families.[8] BDS is committed to helping other families, including by sending qualified immigration attorneys to supervise the interviews of detainees in Albany over the next couple of weeks and working with our pro bono partners to ensure everyone receives legal counsel.[9]

Our one experience so far speaks to the enormous challenges befalling the families that were separated and the authorities who have custody of these children. Now penniless and traumatized, this family is thrust into our country even more unprepared than they were when they crossed the border to adjust to life in the United States. One very positive aspect of the reunification we worked on was the fact that there was a safe house, provided by a local volunteer, with food and showers so these families could get themselves ready to travel to their next destination in California to live with relatives.

Other service providers will likely speak to the challenges of representing hundreds of children[10] and adults[11] who have been transferred to detention facilities in and around the New York City area. I would like to take to this opportunity to focus my testimony today on two other issues: potential sponsors for the unaccompanied children and the elimination of in-person court appearances at Varick Street Courthouse.

  • Sponsor Advisals

The federal Office of Refugee Resettlement (ORR) has custody of children who are not accompanied by a parent or legal guardian or, more recently, who have been forcibly separated from their parent or guardian. Federal law requires that ORR feed, shelter and provide medical care for migrant children until the office is able to release them to safe settings with sponsors (usually family members).[12]

According to ORR, in order for a family member or other person to be approved as a sponsor, they must pass a background check, possibly undergo a home visit and, among other responsibilities, consent to ensure the child’s presence at future immigration hearings.[13] Previously, ORR had protections in place for sponsors to ensure that their background check information was not shared with ICE. The Trump Administration, however, is rolling back many of these policies.

A May 2018 Memorandum of Agreement (MOA) between ICE, ORR and Customs and Border Protection (CBP) clarified that going forward, “ICE will run background checks (criminal and immigration) and then provide that information to ORR for their determination of the suitability of the sponsor.”[14] As the U.S. Conference of Catholic Bishops notes, “The MOA stipulates that ORR will also provide ICE with the name, date of birth, address, fingerprints, and any available documents or biographic information about not only the sponsor but also all adult members of the potential sponsor’s household.”[15]  This policy change on information sharing went into effect concurrently with other decisions by the federal government making clear that they intend to use any and all available information to increase deportations. [16]

Consequently, if a potential sponsor or someone in their household is themselves undocumented or potentially at risk for deportation, undergoing the background check may pose specific risks.[17]  Further complicating this matter is the fact that many low-income people in New York City live with many individuals in a single apartment because of the lack of affordable housing. When any person in the home refuses to undergo the background check, for good reason, the sponsor must choose between leaving the home, at great personal expense, or leaving their minor family member in federal detention.

To address some of these concerns and limit harm to potential sponsors, the City has taken the bold step of contracting with providers like Brooklyn Defender Services to advise sponsors of the specific immigration risks of undergoing the background check and to help them identify alternative sponsors in their community, if necessary to protect the sponsor and their family from deportation by ICE.

With additional funding from the City through the Immigrant Opportunities Initiative (IOI), we will also be able to offer sponsors or their family members comprehensive immigration representation to help them to minimize the risk of deportation.  This new initiative will allow the City to reach out directly to communities and individuals who otherwise may not know how to access free city-funded legal services and expand the scope of New York City’s already robust provision of immigration services.

We are also in the process of fundraising to help alleviate costs imposed on sponsors by the federal government. The New York Times recently reported on the high costs of transportation that ORR is imposing on sponsors in order to have the children transferred to their care. For example, one sponsor in the article was told that he would have to pay $1,800 to fly his cousin’s 14-year-old daughter and an escort from Houston to his home in Los Angeles.[18] Such prohibitive costs imposed on families who are desperately trying to survive the harmful policies and practices already inflicted on immigrant communities by the federal government are simply unjust and wrong. We call on the City Council and the Mayor to determine how best to alleviate some of the financial burdens on sponsors or families who are eventually reunited after this devastating and traumatic experience.

Our hope is that every child currently detained in the New York City area will be settled with his or her family or with a family friend before the end of the summer and in time for the new school year. We look forward to working with our community partners, city agencies and the City Council to make this goal a reality.

Clients Denied In-Person Hearings at Varick Street

BDS’ NYIFUP team represents detained immigrants facing deportation, thanks to the support of the City Council and the City. Purportedly in reaction to #OccupyICE demonstrations at the Varick Street Courthouse protesting the federal government’s family separation policy, ICE instituted a new policy refusing to bring any detained individuals to immigration court for their hearings.[19] Even though the protest began and ended within one business day, the exclusive use of Video Teleconferencing (VTC) hearings continues without any plan to go back to in-person hearings for detainees.[20]

The new policy is already harming BDS’s NYIFUP clients, especially new clients awaiting their first court date. Prior to this policy, NYIFUP attorneys met with detained clients scheduled for intake at the Varick Street Courthouse three times per week. For the past four years BDS, The Legal Aid Society and The Bronx Defenders have been staffing intake shifts and representing all of the detained immigrants who cannot afford or do not already have an attorney. It is important to note that due to the extreme increase in pre-adjudication detention, people who are detained wait for up to three months for their first court date and their chance to meet with a NYIFUP attorney. Intake is a chance for our NYIFUP attorneys to familiarize themselves with complex cases and begin exploring potential relief options, such as filing a green card application or a motion for cancellation of removal. NYIFUP has a small area with interview rooms on the building’s 11th floor, where attorneys are able to individually interview and screen each new client in person.[21] Now that ICE is no longer bringing our clients to the court building, this opportunity is lost. Our ability to ascertain the facts that we need to build a strong case for relief from deportation is greatly inhibited already and continues to affect more and more of our clients. Now, we must do the first court appearance without any client interview and adjourn the case for another date, usually a few weeks in the future. Our clients are detained now for four to five months before they get a meaningful opportunity for even a bond hearing. Through this period, people remain in detention facilities that lack proper health care, separated from family members, often children, with very limited visitation.

VTC also makes it more difficult for our non-English speaking clients to understand and participate in their court proceedings. As affirmed by the American Bar Association, the exclusive use of video appearances makes it difficult for people facing deportation to understand interpreters and often discourages people from asking questions.[22] The use of VTC rather than in-person appearance prevents an interpreter from translating the proceedings in real time (simultaneously), but must wait to interpret. This ensures that the person facing the accusations does not really know what is happening in the courtroom—they are left to receive a summary of the proceedings after they are over. In our experience, the interpreters in this type of situation are not able to provide a meaningful understanding of what happened. More importantly, our client is not able to catch an inaccuracy or otherwise address ongoing discussions with his or her attorney or with the court.

Our clients are effectively excluded from their removal hearing when they are not in the courtroom. They cannot lean over and ask their attorney a question, they cannot pass their attorney a note while a witness is testifying, and their emotions and essential human dignity are obscured to the court.  As the American Bar Association noted, “VTC also makes it harder for parties, attorneys, and the immigration judge to communicate and connect emotionally, which compounds difficulties faced by vulnerable individuals such as juveniles and individuals diagnosed with severe mental illnesses.”[23]

The shift to teleconferencing also harms families who are desperate to see each other after months of separation. Family members frequently attend court dates because it may be their only chance to see their loved ones and maintain critical family bonds despite their separation. When families, friends and neighbors attend hearings this also shows the judge and the prosecuting attorney that the person facing deportation has deep community ties, strengthening the argument for release on bond or relief from deportation.

In short, ICE has taken advantage of public protest to advance its cruel agenda—creating an inhuman deportation machine.  We hope to work with the City Council to actively oppose this policy change and to join with us to ensure that in-person appearances are restored immediately.

Resolution 2018-2418

Resolution 2018-2418 calls on the federal government to pass the federal Keep Families Together Act (S. 3036) to immediately stop the Department of Homeland Security from taking children from their parents at the U.S. border, except with express directive from a child welfare expert. While we strongly support the sentiment behind this legislation – keeping immigrant families together – we have concerns about the child welfare language in the bill.

In addition to defending people in criminal and immigration court, Brooklyn Defender Services represents about 3,000 parents accused of neglect and abuse in family court – a system that many are calling the New Jane Crow for its sharp racial disparities. In supporting this bill, we ask that the Council articulate in the resolution that the bill language must clearly state than any removal of a child from his or her parent at or near the border must be subject to state laws governing removal.

As currently written, the statute could be interpreted to allow state family court judges to authorize separation of migrant families under unconstitutional standards for removal. S.3036 states that federal officers cannot remove a child from his or her parent or legal guardian, at or near the port of entry or within 100 miles of the border of the United States, unless “a state court…determines that it is in the best interests of the child to be removed from his or her parent or legal guardian, in accordance with the Adoption and Safe Families Act of 1997.” This particular language is problematic because the “best interests” standard is not a legal basis for removing a child from their parent under state or constitutional law. It also does not make sense that the bill references the Adoption and Safe Families Act of 1997, as this legislation does not define the standard for removal; it governs what happens to a child once they are removed from their families and placed in foster care. Our fear with the bill as currently written is that state court judges, if they interpret the law in this manner, may summarily remove children from their parents simply because the parents are detained, as detention would not be in the child’s best interests, and parents would be left with no recourse to meaningfully challenge this decision or to ensure regular visitation. In short, the bill could be used by the current federal administration, in coordination with willing state family court judges, to legalize the continued separation of migrant families at the border.

However, if the bill language were clarified to ensure that separation may not occur in any case unless removal would be authorized under state law, these concerns would be ameliorated. The custody of children is an issue squarely within the discretion of the state, subject to constitutional limitations. This is why state law should govern these separation proceedings. Pursuant to the same laws governing removal, parents would be afforded robust due process protections, including the right to an experienced family defense attorney and the right to regular visitation. These due process protections are critical to ensure that parents have a fighting chance to assert their constitutional and statutory rights to remain with their children and children equally get to be with their parents absent abuse or neglect.

The harm to children removed from their parents, in any context, is severe and irreparable. Many experts have weighed in on the harm to children separated from their parents at the border over the past few months, including the American Academy of Pediatrics and the American Psychological Association. Harmful effects range from future depression, anxiety and post-traumatic stress disorder (PTSD) to violent tendencies, substance abuse and difficulty forming relationships down the line.[24] As we know from the foster care system, removing children from their parents, even in cases involving abuse or neglect, generally leads to worse outcomes for children across the board. As the VERA Institute of Justice noted, “research shows that entry into foster care raises the risk of long-term adverse effects on children compared to socioeconomically similar children who are not removed, including poor school performance, homelessness, arrest, chemical dependency, and mental and physical illness.”[25] Child-protection-involved children tend to leave foster care with more problems than when they entered care. Children exiting foster care have significantly more behavioral problems when compared with their own pre-placement measures of adaptation. Former foster children experience additional negative life outcomes, including higher teen birth rates and lower career earnings.[26] Former foster children are also disproportionately likely to experience homelessness compared to the general population.[27]

Brooklyn Defender Services strongly supports federal legislation that meaningfully ensures that families fleeing violence and hardship in other countries are allowed to remain together, in the community, while they litigate their right to live, work, and support their families in the US. New York ensures families due process protections in cases of possible removal. Any federal law that aims to keep migrant families together must be subject to existing state court procedures that protect families. The Council should call on Congress to make these amendments to limit any unintended consequences.

Conclusion

The Council plays a critical role in safeguarding the vibrancy and safety of New York City’s immigrant community. This Council has been a national leader in the creation of a first-in-the-nation assigned counsel, the NYIFUP program. Your investment in NYIFUP, IOI and other initiatives has provided service providers like BDS with the support and agility to respond to crises like this. We look forward to continuing to work with the Council to protect the rights and well-being of our communities and help all New Yorkers thrive.

Thank you for inviting me to testify and for considering my remarks today. Please reach out to Andrea Nieves, Senior Policy Attorney at anieves@bds.org or 718-254-0700 ext. 387 if you have any additional questions.

[1] Learn more about the campaign at www.wehaverights.us.

[2] Aric Jenkins, Jeff Sessions: Parents and Children Illegally Crossing the Border Will Be Separated, Time, May 7, 2018, available at http://time.com/5268572/jeff-sessions-illegal-border-separated/.

[3] Lisa Riordan Seville & Hannah Rappleye, Trump admin ran ‘pilot program’ for separating migrant families in 2017, NBC News, June 29, 2018, available at https://www.nbcnews.com/storyline/immigration-border-crisis/trump-admin-ran-pilot-program-separating-migrant-families-2017-n887616.

[4] Executive Order: Affording Congress an Opportunity to Address Family Separation, June 20, 2018, available at https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/.

[5] See American Civil Liberties Union, Ms. L v. ICE, available at https://www.aclu.org/news/court-rules-trump-administration-must-adhere-family-reunification-deadlines.

[6] Dara Lind, The Trump administration just admitted it doesn’t know how many kids are still separated from their parents, Vox, July 5, 2018, available at https://www.vox.com/2018/7/5/17536984/children-separated-parents-border-how-many.

[7] Eliza Fawcett & Victoria Kim, Trump appears to walk back ‘zero tolerance’ immigration policy as family reunification deadline looms, L.A. Times, July 10, 2018, available at http://www.latimes.com/local/lanow/la-me-deadline-separated-20180710-story.html.

[8] See Melanie Grayce West & Arian Campo-Flores, A Day After Court Deadline, a Round of Family Reunifications at 26 Federal Plaza, Wall St. Journal, July 11, 2018, available at https://www.wsj.com/articles/a-day-after-court-deadline-a-round-of-family-reunifications-at-26-federal-plaza-1531347140?tesla=y&mod=article_inline;

Annie Correal, ‘Mi Amor!’: Tearful Scenes as Immigrant Reunions Begin in New York, N.Y. Times, July 11, 2018, available at https://www.nytimes.com/2018/07/11/nyregion/immigrant-children-reunited.html?rref=collection%2Fsectioncollection%2Fnyregion&action=click&contentCollection=nyregion&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront;

[9] Massarah Mikati, Uphill battle for volunteer attorneys for ICE detainees at Albany County jail, Albany Times-Union, July 9, 2018, available at https://www.timesunion.com/local/article/Some-ICE-detainees-at-Albany-jail-separated-from-13060830.php.

[10] Jesse McKinley, Liz Robbins & Annie Correal, 16 and Alone, Inside a Center for Separated Children in New York, N.Y. Times, June 21, 2018, available at https://www.nytimes.com/2018/06/21/nyregion/cuomo-separated-families-children.html.

[11] Mikati, Uphill battle for volunteer attorneys for ICE detainees at Albany County jail

[12] Office of Refugee Resettlement, Unaccompanied Alien Children Released to Sponsors by State, June 30, 2017, available at https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-released-to-sponsors-by-state.

[13] Id.

[14] U.S. Conference for Catholic Bishops, Justice For Immigrants, ORR and DHS Information-Sharing Agreement: The Unintended Consequences, 2018, available at https://justiceforimmigrants.org/what-we-are-working-on/unaccompanied-children/orr-and-dhs-information-sharing-agreement-the-unintended-consequences/.

[15] Id.

[16] See, e.g., U.S. Citizenship and Immigration Services, Policy Memorandum: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissable and Deportable Aliens, June 28, 2018, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.

[17] One specific concern, for example, is that federal authorities have issued memoranda prioritizing immigration enforcement and prosecution of “alien smugglers,” a term that they have interpreted to target parents or sponsors who may have relied on smugglers to help bring their children to the U.S. See John Burnett, ICE Has Arrested More Than 400 In Operation Targeting Parents Who Pay Smugglers, NPR: All Things Considered, Aug. 18, 2017, available at https://www.npr.org/2017/08/18/544523231/arrests-of-undocumented-parents-sparks-debate-between-federal-officials-and-immi; Camila Domonoske & Joel Rose, What’s New In Those DHS Memos on Immigration Enforcement?, NPR, Feb. 22, 2017, available at https://www.npr.org/sections/thetwo-way/2017/02/22/516649344/whats-new-in-those-dhs-memos-on-immigration-enforcement.

[18] Miriam Jordan, Sponsors of migrant children face steep transport fees and red tape, N.Y. Times, July 1, 2018, available at https://www.nytimes.com/2018/07/01/us/migrant-children-families.html.

[19] Emma Whitford, ICE Limits Access to Lawyers for NYC Immigrants in Detention, Citing Protests, The Appeal, June 27, 2018, available at https://theappeal.org/ice-limits-access-to-lawyers-for-nyc-immigrants-in-detention-citing-protests/.

[20] Gerald Porter, Jr., Manhattan’s Immigration Court Begins Video Only Hearings, Wall St. Journal, June 29, 2018, available at https://www.wsj.com/articles/manhattans-immigration-court-begins-video-only-hearings-1530274855?mod=searchresults&page=1&pos=1.

[21] Whitford, ICE Limits Access.

[22] American Bar Association, ABA Concerned About Videoconferencing in Immigration Courts; Urges Allowing Requests for In-Person Hearings, March 2012, available at https://www.americanbar.org/publications/governmental_affairs_periodicals/washingtonletter/2012/march/immigrationcourts.html.

[23] Id.

[24] See, e.g., Jamie Ducharme, ‘What This Amounts to Is Child Abuse.’ Psychologists Warn Against Separating Kids from Their Parents, Time, June 19, 2018, available at http://time.com/5316030/kids-separation-parents-psychological-harm/.

[25] Reva I. Allen, Alex Westerfelt, Irving Piliavin, & Thomas Porky McDonald, Assessing the Long Term Effects of Foster Care: A Research Synthesis (Child Welfare League of America, 1997), cited in Allon Yaroni, Ryan Shanahan, Randi Rosenblum, & Timothy Ross, Innovations in NC Health and Human Services Policy: Child Welfare Policy, VERA Institute of Justice Policy Briefs, Jan. 2014, available at http://www.nyc.gov/html/ceo/downloads/pdf/policybriefs/child-welfare-brief.pdf.

[26] Joseph J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 Am. Econ. Rev. 1583, 1584 (2007) [hereinafter “Doyle 2007”].

[27] See Patrick J. Fowler et al., Pathways to and From Homelessness and Associated Psychosocial Outcomes Among Adolescents Leaving the Foster Care System, 99 Am. J. of Pub. Health 1453 (2009).

BDS TESTIFIES BEFORE THE NYC COUNCIL ON THE HARM OF THE COMMERCIAL BAIL BOND INDUSTRY

TESTIMONY OF:

Catherine Gonzalez, Staff Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committees on the Justice System and Consumer Affairs & Business Licensing

May 2, 2018

My name is Catherine Gonzalez and I am a staff attorney in the Criminal Defense and Padilla units at Brooklyn Defender Services (BDS). BDS is one of the largest legal services providers in New York City, representing approximately 35,000 low-income Brooklyn residents each year who are arrested, or facing child welfare allegations or deportation. BDS also provides a wide range of other services to our clients, including help with housing, education, employment and immigration. I thank the City Council Committee on Justice and the Committee on Consumer Affairs & Business Licensing for this opportunity to testify about the immense harm of commercial bail bonds on our clients and their families and communities. We support Intro 510 and 724 and the urge the Council to pass these bills to mitigate some of this harm and increase transparency in bail bonds transactions. Ultimately, the City should work toward abolishing this predatory and unnecessary industry. My testimony will center the stories of the people we represent as well as some recommendations to improve the bills.

Recommendations:

Intro 510 should be amended to require that bail bond businesses’ posted notices stipulate, in clear language, that the compensation cap applies to total compensation, not just premiums. The fines must be significantly increased if they are to have any effect. In addition, complaints submitted to the Department of Consumer Affairs (DCA) should be referred to all applicable agencies, rather than just the NYPD, and DCA should publicly report on referrals and outcomes. Lastly, the legislation should create an effective mechanism for those who have been victimized by bail bonds businesses to be made whole, including through restitution with treble damages and attorneys’ fees.

Intro 724 should be amended to require bail bond businesses to inform consumers of financial risks, including circumstances in which any funds or property provided as collateral might be retained by the business. The bill should also stipulate narrowly-tailored authorized uses of collateral, as there are currently no meaningful restrictions.

Background

The commercial bail industry serves no legitimate purpose and should be abolished. We echo the call of New York City Comptroller Stringer for the City to help make that a reality. There is no place for for-profit actors in determinations of liberty, especially during the pre-trial period when people are presumed innocent.

Though New York’s bail statute offers judges nine different options for bail, including options that do not require the defendant to pay anything upfront, the nearly invariable practice of judges is to offer the most onerous and ultimately punitive choices: pay the full amount now or visit a bail bondsman. (I can recall only one case in which a judge allowed for a partially secured bond.) The Lippman report shows that judges and prosecutors rarely spend any time thinking of the defendant’s ability to pay.[1] Therefore, most of our clients for whom bail is set in any amount default to spending an uncertain amount of time on Rikers Island because they are unable to pay, even if the bail is set as “low” as $100.[2] Convicted of no crime, 9,000 people are detained in New York City jails until and unless they buy their freedom from a third-party whose only motive is profit. This injustice fuels a thriving for-profit bail bond industry, in which defendants and their families are forced into predatory and often illegal financial agreements with little or no recourse.

Families in this situation pay a non-refundable portion of the total bail amount to a bail bond company, who then writes a bond for the full bail amount. This portion, called a “premium,” is capped according to a formula in the bail statute, though many if not most commercial bail bonds charge premiums that exceed the cap, in part because customers are among the most marginalized and disempowered New Yorkers and regulators have largely ignored this industry.[3] Importantly, the cap applies to “premium or compensation.” In addition to losing the premium, these agreements often include additional terms and conditions, fees, surveillance, and/or property loss, if assets were put up as collateral. Any such additional monetary charges, excluding collateral that is slated to be returned, are illegal, but are routinely charged by the bail bondsman.  These illegal charges are not regulated in my experience.  Additional terms and conditions, which may be extremely onerous but their enforcement remains a legal grey area. In practice, bail bonds act as extortion—sometimes aided by violence—for an individual’s freedom.

Money bail is not a fair, effective, or necessary means to ensure a defendant’s return to court; the success of our charitable bail funds, whose clients have no financial “skin in the game,” proves this to be true. For this reason, unsecured bonds, for which defendants pay nothing upfront, should be the norm under the existing bail statute. To the extent that courts and District Attorneys continue to require some form of upfront money bail, and continue to be permitted to do so under the law, there is no need to rely on commercial bonds. The better options is for people charged with a crime to pay a bond directly to the court, which would return that money in full if they are not convicted of a crime, or all but 3% if they are convicted, as long as they make their court dates.

Commercial bail is a twisted form of insurance; consumers assume all of the risk and pay substantial premiums and fees. Frankly, this industry would not be allowed to exist were it not principally used by marginalized people. According to Comptroller Stringer, “in the last year alone… the private bail bond industry extracted between $16 million and $27 million in nonrefundable fees from New York City defendants and their families.” These are predominately low-income families of color, many forfeiting rent or food money to free loved ones from jail.

For the remainder of the period in which this industry continues to exist, it must be much more tightly regulated. Until recent enforcement actions by DCA, the New York State Department of Financial Services was the only watchdog for the industry, and has abnegated its responsibilities. Complaints that we and our clients submit have never yielded any sanction of the worst actors and, more importantly, it is not clear they have any interest in making whole those who have been victimized.

In truth, it is not only impacted individuals and families who are left feeling powerless when courts order commercial bail. As a public defender, I have little advice to give my clients and their loved ones with respect to bail bonds businesses. They want referrals, but no company can be trusted in this lax regulatory environment. All I can do is provide them with a pamphlet on bail paying that our office helped create with the Brooklyn Community Bail Fund through the Center for Urban Pedagogy, and strongly urge them to get a copy of contracts and receipts. With liberty on the line, and sometimes just hours to pay before DOC’s bus is loaded and leaving the courthouse for Rikers Island, there is little opportunity to challenge bail bonds businesses’ wrongdoing. The City and State must take action, and courts should cease ordering commercial bail.

BDS supports Intro 510 (CM Lancman) – A Local Law to amend the administrative code of the city of New York, in relation to fees charged by bail bondsmen.

Intro 510 would require that bail bond businesses conspicuously post the state’s formula for the cap on premiums. It also requires the Department of Consumer Affairs (DCA) to establish a complaint mechanism for illegal overcharges by bail bonds businesses as well as refer alleged violations to the New York Police Department for investigation. This bill could begin to protect New Yorkers from the unscrupulous practices of bail bonds businesses. However, it should be amended to require that bail bond businesses’ posted notices stipulate, in clear language, that the cap applies to total compensation, not just premiums. So-called fees currently charged by many bail bond businesses, in excess of the cap, are illegal and must be recognized as such. Also, the fines must be significantly increased if they are to have any effect. Bail bond businesses regularly make hundreds if not thousands of dollars in illegal fees; a $250 fine would likely be absorbed as the cost of doing crooked business. In addition, complaints submitted to the Department of Consumer Affairs (DCA) should be referred to all applicable agencies, rather than just the NYPD, and DCA should publicly report on referrals and outcomes disaggregated by enforcement agency. Lastly, the legislation should create an effective mechanism for those who have been overcharged by bail bonds businesses to be made whole, including through restitution with treble damages and attorneys’ fees.

BDS supports Intro 724 (Speaker Johnson, CM Williams, CM Lancman, CM Van Bramer, and CM Dromm) – A local law to amend the administrative code of the city of New York, in relation to requiring that bail bond businesses make certain disclosures.

The for-profit bail bonds industry has grown alongside mass incarceration and mass criminalization. The industry has morphed into one with little regulation, and predatory pricing and contracting, which negatively impacts low-income people. Unfortunately, our clients who have no option but to rely on commercial bail bonds become involved in a complex transfer of money and risk. Commercial bail bonds involve “surety” bonds that are primarily financed by large global insurers.[4] Unlike traditional insurance (car, home, etc.), such surety bonds place the risk and requirement to pay the full bond amount, not just the premium amount, onto the family. However, these transactions occur in several layers of opaque structures between corporate entities, bond-insurance operations, and bail bonds’ storefronts, all of which is unknown to our clients or the public.

Intro 724 would require DCA to produce a “consumers’ bill of rights regarding bail bond businesses” in multiple languages. It would further require bail bond businesses to provide consumers with a flier containing the same information, and conspicuously post signage with basic but important identifying information regarding the licensed bond agents, including all addresses that operate under their license. Much of this information would also be included in all receipts and contracts. Lastly, it would require that bail bond businesses provide each consumer a copy of any document related to the provision of its services that the consumer signed, including but not limited to any contract. For the benefit of our clients and the public, in addition to the proposed disclosures, we recommend that this bill require bail bond businesses to inform consumers of financial risks, including circumstances in which any funds or property provided as collateral may be retained by these businesses. The bill should also stipulate narrowly-tailored authorized uses of collateral, as there are currently no meaningful restrictions. As noted earlier, the bond industry operates within murky transactions, and far too often are our clients entering predatory contracts in moments of desperation when they are not fully aware of their rights and liability.

Client Examples

Ms. J went to Marvin Morgan Bail Bonds to get her son out of Rikers Island. She was particularly nervous for him because it was his first arrest. The bond was set at $1,000, and according to state law, the company was allowed to charge her $100 in “premium or compensation” that she would never get back, regardless of the outcome of the case. The company instead charged her $300, comprised of $100 for the premium and $200 in “courier fees” to deliver the paperwork. The courier, Lightning Courier Service Inc, is registered with the New York State Department of State at the same address as Marvin Morgan Bail Bonds. (Other BDS clients have paid $1,000 in courier fees, including at least one who paid that amount to Lightning Courier Service at Marvin’s.) Marvin’s did not bail her son out of Rikers for five days. According to DFS, there is no statutory requirement that a bail bonds agent actually bail anybody out, and there is certainly no deadline by which they must act as they are paid to do. Finally, the day before Ms. J’s son was set to appear in court, he was bailed out. He went to his hearing and his case was dismissed. Nonetheless, Ms. J’s money will almost certainly not be returned to her. She has filed a complaint with DFS, but, like all commercial bail customers, she signed a large contract in a time of crisis, was not given a copy, and might have signed a document that, lawfully or not, contained provisions regarding the fees she paid.

$300 is a lot of money for the many extremely low-income New York families who enter our criminal justice system, as evidenced by the majority of the population in Rikers enduring pre-trial incarceration because they cannot afford $500 or less, but Ms. J’s loss was relatively small compared to that of other clients who have recently complained to us. Ms. W went to ABC Bail Bonds to get her son, who suffers from serious mental illness and addiction, out of Rikers. She paid $3,560 in premiums and fees on a $50,000 bond, or $300 over the legal ceiling. She also provided the deed to her house and paid $5,000 in collateral. Soon after her son was released, however, he was involuntarily committed to a state psychiatric hospital and missed a “check-in” with the bail company. Rather than call Ms. W and ask for her son’s whereabouts, the company “apprehended” him from the hospital, returned him to jail, and exonerated the bail in a non-adversarial hearing. They also kept Ms. W’s $3,560, along with her $5,000, which it took the liberty of converting from collateral into an “apprehension fee.”

One of our social workers recently accompanied a client, Ms. S, to Marvin Morgan Bail Bonds to observe the process of securing their services to get her son out of jail. The company charged her an illegally high sum, but she had called around and this company was the cheapest. Informed that the compensation was illegal, she asked, “What choice do I have?” She signed a 24 -page contract and paid as charged, including a $1,000 courier fee to Lightning Courier Service Inc.

We recognize and on a daily basis witness the deeply entrenched judicial practice of cash bail or bond as the only option for pre-trial release that reinforces the market for unscrupulous bail bondsmen, however, we hope to shift the culture towards one that does not punish a person being accused of a crime, but allows them to maintain their innocence unless proven guilty. Commercial bail is a gross distortion of justice. These perpetual patterns bolster not only our support for Intro 724 and 510, but also our advocacy towards abolishing commercial bail.

Thank you for your consideration of my comments and recommendations. If you have any questions regarding my testimony, or any issue, please contact Saye Joseph in my office at scjoseph@bds.org or (718) 254-0700 Ext. 206.

[1] Independent Commission on New York City Criminal Justice and Incarceration Reform. (2017). A More Just New York City. NYC.

[2] Burdeen, C. F. (2016, April 12). The Dangerous Domino Effect of Not Making Bail. The Atlantic.

[3] The Criminal Justice Operations Committee, Criminal Courts Committee and Corrections and Community Reentry Committee. (2017). Recommendations Concerning the Bail Bond Industry in the State of New York.

[4] ibid.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON CRIMINAL JUSTICE OVERSIGHT HEARING ON SAFETY AND SECURITY IN CITY JAILS

 

 

TESTIMONY OF:

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Criminal Justice

Oversight Hearing on Safety and Security in City Jails

Int 0447-2018 – Requiring the dept of correction to report on the rate of lockdowns.

Int 0741-2018 – Prohibiting fees for telephone calls from inmates in city jails.

Int 0779-2018 – Requiring the DOC to report on use by dept staff of any device designed to incapacitate a person through the use of an electric shock.

April 23, 2018

My name is Kelsey DeAvila; I am the Jail Services Social Worker at Brooklyn Defender Services. I would like to thank the Committee on Criminal Justice, and in particular Chair Keith Powers, for convening this hearing on safety and security in New York City jails, as well as three important pieces of legislation. BDS provides comprehensive public defense services to more than 30,000 people each year, thousands of whom are incarcerated in the city jail system either while fighting their cases or upon conviction of a Misdemeanor and a sentence of a year or less. BDS’ Jail Services Division provides supportive services and direct advocacy on behalf of our incarcerated clients.  This testimony draws on the experiences of our clients and staff in the jails. BDS has testified to the Council on these topics before, most recently at the Oct. 25, 2017 hearing on violence in City jails. In addition to our comments today, we also call the Committee’s attention to the Fifth Report of the Nunez Independent Monitor (“Nunez Report”) regarding the Department of Corrections’ (“DOC” or “Department”) efforts to reduce violence under the settlement reached in that case. Ultimately, we continue to urge the City to close the jails on Rikers Island.

BDS Supports Int 0447-2018 – Requiring DOC to report on the use of lockdowns.

In its January 8, 2018 report on lockdowns, the Board of Correction revealed that, “Despite a 32% decrease in the DOC average daily population (ADP) since 2008, there has been an 88% increase in lockdowns.”[1] During lockdowns, people are confined to their cells and generally denied any and all access to programs and services. They cannot go outside for recreation, shower, use telephones or law libraries, access religious services, attend school, or receive family or counsel visits. They are often denied medical care, including mental health care. Some clients have reported being denied toilet tissue. Missed counsel visits can require cases to be adjourned, prolonging pre-trial detention. Missed mental health treatment can result in the rapid decompensation of vulnerable people. BOC’s report also found lockdowns often lead to violations of the Minimum Standards.[2]

Lockdowns amount to group punishment, apparently used by DOC as a convenient management tool with little regard for the rights of people in its custody. People are effectively held in solitary confinement for days at a time with no due process.

Int. 0447 will require regular reporting on the number of lockdowns and the underlying reasons for the lockdowns. Such basic transparency will assist policymakers and the public in analyzing DOC policies and practices. Ultimately, a new statute or Minimum Standard is needed to ensure that DOC does not abuse its ability to lockdown housing units or facilities, but this legislation is an important first step.

BDS Strongly Supports Int 0741-2018 – Prohibiting fees for telephone calls from inmates in city jails.

Every year, the City of New York anticipates approximately $20.5 million in revenue from the Department of Corrections, with the bulk of that money coming from incarcerated people and their families and friends. (In 2016, DOC actually collected $22.4 million.) The majority of people in City jails are detained on bail they cannot afford, presumed innocent but, in effect, very severely punished. It is unconscionable that the City would turn to this population for revenue.

Approximately $13 million is generated from people who are incarcerated themselves who are forced to pay high mark-ups on items in the commissary. These commissary purchases are often critical supplements to what is provided by DOC – food to offset a minimal diet, pain relievers for those with chronic injuries, feminine products for women.[3] Outrageously, regulations promulgated by the State Commission on Corrections (SCOC) require that local jail commissaries “provide a modest return above costs,” with profits “deposited in a separate bank account and shall be utilized only for purposes of prisoner welfare and rehabilitation.” In its February 2018 report on the worst jails in New York State, SCOC explicitly cited NYC DOC for failing to generate this return, instead finding it operates at a loss.[4] It is unclear whether this allegation is founded. Regardless, programs and services for incarcerated people should not be paid for by those whose liberty and economic means have been taken away.

Another $5 million is generated in kickbacks from Securus, the company contracted by the City to provide telephone services. This is also unacceptable. Exorbitant rates for calls from City jails punish whole families and exacerbate inequality. The high rates force people to forgo food or other necessities just to be able to accept a call from a loved one. When our clients are in jail and, in many cases, ripped away from their jobs, the public has an interest in ensuring they can connect with their support networks and plan for the future. The government should not financially benefit by erecting barriers to these critical support networks. BDS applauds Speaker Corey Johnson for introducing Int. 0741 to end this injustice and urges the Council and the Mayor to enact it in this current budget.

I also note that one of the services provided by Securus and paid for by our clients and their families is warrantless surveillance. Securus and the government record and listen to phone calls made from within the jails and share the recordings with police and prosecutors to be used in criminal cases or other unrelated investigations. This practice raises serious Constitutional issues, as the City and a for-profit contractor are effectively waiving protections of the 4th Amendment for tens of thousands of people detained pre-trial every year without their consent, with a disparate impact that mirrors disparities in pre-trial liberty overall.

BDS Supports Int 0779-2018 – Requiring the DOC to report on use by department staff of any device designed to incapacitate a person through the use of an electric shock.

BDS was alarmed to learn, via the press, that DOC would be providing Tasers to its staff. Already, corrections officers too often use violence not as a last resort but as a means of control and punishment. On their own, Tasers can be deadly, and they pose specific risks to people with medical conditions about which corrections officers are not typically aware. DOC staff will not be checking people’s medical records before Tasing them, just as they do not check for asthma or other respiratory illnesses before using pepper spray.

If Tasers are readily available, we urge the Counsel to add this weapon to the list of categories to be disaggregated for reporting on uses of force. This information will help policymakers and the public analyze DOC policies and practices. Ultimately, BDS does not believe DOC can be trusted to safely and appropriately use Tasers.

Safety and Security in New York City Jails

In any discussion about improving jail security, it is crucial to first acknowledge the vast number of people who simply should not be incarcerated in the first place. For example, many thousands of New Yorkers are needlessly detained each year because they are unable to immediately pay bail, resulting in short jail stays with devastating consequences. Individuals are separated from families and communities; risk loss of employment, benefits and housing; suffer interruptions in medical care; struggle to maintain their mental health; and endure chaotic and often violent stays in custody. Thousands more are detained for longer stretches because bail is set, either intentionally or neglectfully, in an amount and form their families could never afford. Meanwhile, high turnover in the jail population puts a strain on staff, housing and healthcare resources in the jails. Broken Windows policing and the widely-discredited Drug War needlessly sweep masses of people into the criminal legal system; of the 268,775 arrests in New York in 2016, more than 122,000 stemmed from allegations relating to fare evasion, drugs, petit larceny (often baby food, laundry detergent and other essentials), trespass (often related to shelter-seeking), graffiti, or sex work.  Taken together, people fighting drug charges constitute the largest group of people in City jails on an average day.[5] In addition to mitigating harm to individuals, ending unnecessary arrests and discriminatory bail practices that discriminate against poor New Yorkers will contribute to reducing violence and easing other management challenges.

Nevertheless, addressing endemic violence in New York City jails will take more than reducing population turnover and crowding. More broadly, the Department and City officials must act urgently to address the culture of violence which remains deeply entrenched among uniformed jail staff at all levels.

The Culture of Brutality Persists in NYC Jails

The Nunez Report details the same disturbing behavior routinely reported by our clients: “As discussed in the Staff Use of Force and Inmate Violence Trends section, many of the aspects of misuse of force that existed two years ago continue to plague the DOC, including head strikes, misusing chemical agents, use of prohibited holds, needlessly painful escort tactics, and incidents escalated by Staff (including hyper-confrontational Staff demeanor), and an overreliance on Probe Team responses…The Department does not consistently identify Staff misconduct when it occurs, and even when misconduct is identified, the Department does not always respond to it timely.”[6]

Claims that the behavior of incarcerated people justifies current rates of violent force are easily belied by the data.  According to the Fourth Nunez Report, during the monitoring period, uses of force to prevent harm declined by 78% and those in response to fights dropped by 18%.  Meanwhile, uses of force in response to “resisting restraints” doubled, and those responding to “refusal to comply” were up 35%.  Altogether, the Report finds that nearly a quarter of use of force incidents were avoidable – a third of those arising from unprofessional staff behavior.   In sum, rather than exercising patience, restraint and common sense, uniformed staff too often fuel conflict through belittling name-calling and provocation, then jump at the chance to use violence.

We are deeply troubled by frequent and persistent reports that staff use pepper spray indiscriminately and without provocation. BDS clients have reported several incidents which illuminate the problem.  In one instance, an officer flew into a rage during a verbal disagreement with our young client. Despite no physical threat to the officer or others, the officer took out her MK9 pepper spray. When our client fled, the officer unleashed the pepper spray as she chased him through the mess hall, dousing everyone else in the area. The excessive pepper spray triggered a severe asthma attack which left our client coughing up blood. He was taken to intake where he waited several hours before receiving medical care. The incident likely sent many bystanders to the clinic as well.

This story is but one among many.  I and other BDS staff members frequently take reports about entire housing units enshrouded in a fog of chemical agents. Staff’s lack of restraint with respect to the use of chemical agents is galling.  Just last week I witnessed officers on the bus jeering as their colleague regaled them with stories of emptying canisters of pepper spray on people – including one in which the officer “made a grown man cry.”

More challenging to quantify than staff use of force, but nevertheless disturbing, is that our clients frequently report that staff are complicit in, encourage, and facilitate gang violence to do their bidding. In one recent incident, an officer engaged our client in a verbal argument, ultimately threatening to place him in a unit housing rival gang members.  Making good on this threat, our client was later moved to a cell in the jail’s intake where he encountered approximately seven members of a rival gang. As planned, he was attacked and suffered two deep cuts on his face, requiring several stitches.

People in Rikers Are Subject to Daily Humiliations and Deprivation

Beyond the most serious cases of brutality, stemming the tide of violence in city jails requires addressing the myriad humiliations people in city jails endure on a daily basis. These structural and social cruelties contribute to an environment rife with tension.  For example, most young people are limited to visits devoid of meaningful physical contact – separated by a wide table and plexiglass barrier. Ostensibly a security measure, the enforced separation of young people from their mothers’ loving touch breeds deep resentment. To make matters worse, conversations during visits are often dominated by the humiliating ordeal visitors endure to get through “security procedures” prior to seeing their loved ones.

Other everyday cruelties include officers tightening handcuffs to the point that hands lose their feeling, then twisting the wrists to cause shooting pain while uttering threats of further violence. At GMDC, young people describe an area in intake known as the “forget about me cells” where people are left and ignored for hours without food or water, as a form of retaliation, punishment, or simple negligence. In isolation units and similar high-security units, people rely on officers for their most basic needs. When officers deprive people of toilet paper, food, showers, outdoor recreation and other necessities, people become desperate, and in their desperation, may act out – thereby deepening the cycle of violence and isolation.  People join gangs for survival and access to basic amenities. The list of daily humiliations is endless.

All agree that reducing violence among incarcerated people is a worthy aim. As a first step, it is paramount to address the ways staff practices fuel the broader culture of violence in city jails.  So long as humiliation remains a celebrated tactic and gangs are manipulated to control or intimidate, violence will likely remain unabated in New York City jails. Unfortunately, the Department’s investigation and promotion practices only reinforce the conclusion that uniformed staff are permitted to brutalize the people in their care with impunity.

Internal Investigators Help Cover-Up of Abuse

At the facility-level, supervisors routinely ignore evidence of collusion and decline to interview victims or witnesses of uses of force, opting instead to rubber-stamp the statements of officers they are tasked to oversee.  Inquiries by the Department’s Investigation Division also exhibit substantial deficiencies, and are plagued by severe delays.

Interviews with victims or witnesses of use of force regularly take place within earshot of other people and staff.  Uniformed staff are known to retaliate against people who report misconduct, both violently and through more subtle means, for example, denying access to commissary or visits, or through repeated and continuous verbal harassment. Fearing reprisals, many of our clients are unwilling to give full accounts of an incident without guarantees of confidentiality.  When victims and witnesses choose to make statements despite the risk of retaliation, their accounts are too often discredited without justification.

The apparent consequence is an investigations process that fails to uncover staff misconduct or serves to justify it, rather than enforce accountability. As noted by the Nunez Monitor, 92% of investigations between January and June 2017 found no staff wrong-doing, despite clear objective evidence of much higher rates of unjustified force.  In rare cases that an investigation finds staff misconduct, discipline is delayed and largely ineffectual, except in certain high-profile cases.

DOC Supervisors Model Bad Behavior

A major shift in Department culture can only be engendered when supervisors and management respect the basic human dignity of the people in their care, demonstrate a baseline of professionalism, and ensure accountability among the rank and file.  At present, this is sadly far from the case. This challenge is of the Department’s own making. The long-standing and consistent failure to meaningfully investigate staff misconduct and bring those responsible to account has allowed many of the individuals responsible for that misconduct to advance into leadership roles.

BDS staff spend considerable time in the jails and are dismayed by the demeaning language and dehumanizing attitudes routinely on display among supervisors.  As a matter of course, people in department custody are almost never referred to as “people” – at best they are “packages” or “bodies,” frequently they are called “animals” and too often they are referred to only by expletives or racial epithets. Rather than setting an example of professionalism, supervisors routinely exchange gossip and insults about incarcerated people. During a jail tour last year, a BDS staff member witnessed a supervisor laughing enthusiastically as their subordinate recalled threatening to empty a canister of pepper spray into the open mouth of a person who was lying prone on the floor, handcuffed.

It is not uncommon to hear supervisors encourage cruelty, disrespect and violence toward incarcerated people. More disturbing, however, is the frequency with which supervisors themselves are responsible for unnecessarily escalating conflicts and encouraging their subordinates to resort to violent force quickly and excessively. Once an incident is underway, supervisors sometimes participate in the very acts of brutality they should intervene to prevent.

The Nunez Monitor documents one such incident in which a Deputy Warden ordered officers to use military-grade pepper spray on an individual who was restrained, facing a wall and not resisting.   Such misconduct on the part of supervisors sends a clear message to line staff that violence against incarcerated people is permissible and encouraged.

We urge the Department and city officials to closely review promotions, demand a baseline of professionalism and competence from supervisors, and strictly enforce accountability.  With even a semblance of adequate supervision, we believe some of the most egregious incidents could be avoided.  In the long-term, it is imperative that management and supervisory staff embrace and demonstrate respect for the dignity of the people in their custody. Similarly, the city must hold Department leadership accountable for policies and practices that continue to violate the human rights of people in New York City jails.

Solitary Confinement is NOT the Answer

Solitary confinement is at the core of mass incarceration in the United States – and, in particular, New York. It is the center of the onion of our inhumane and ineffective punishment system. In a letter of support for the HALT Solitary Confinement Act, Dr. Bandy X. Lee, Assistant Clinical Professor of Psychiatry at Yale and an internationally-recognized expert on correctional psychology and the prevention of violence, wrote: “It has now become evident that the opposite of solitary confinement—that is proper socialization, interaction, and training—is what brings about the result we all desire.”

In the wake of the attention to Kalief Browder’s tragic death, the New York City Board of Correction (BOC) heeded the call of grassroots activists, attorneys for incarcerated people, and mental health professionals, and implemented new minimum standards to dramatically curtail the use of existing solitary confinement units in City jails and prohibit it altogether for young people. However, these regulations explicitly allowed DOC to create new units for the indefinite isolation of the very people BOC sought to protect. BOC’s new standards failed to bring about the fundamental transformation of the punishment paradigm that is needed. Certainly, any rollbacks of these reforms would be a major step in the wrong direction. Rather, further steps are necessary to achieve the protection that BOC sought to create – ensuring that DOC cannot indefinitely isolate people is a necessary step towards promoting safety and security in the City’s jails.

Improving Security and Preserving Family Bonds by Encouraging Contact Visits

Research compiled by the VERA Institute shows that jail visitation preserves critical “pro-social supports” that improve behavior and, for young people, school performance.[7] VERA also found that “Incarcerated men and women who maintain contact with supportive family members are more likely to succeed after their release. For example, people in prison “who had more contact with their families and who reported positive relationships overall are less likely to be re-incarcerated. Families can motivate formerly incarcerated relatives to seek or continue drug treatment or mental health care, and they most frequently provide housing for newly released family members.”[8] Research conducted by the Minnesota Department of Corrections further found that “Visiting can help offenders build support networks they will need after release…[P]ositive interactions with friends and family can lower recidivism.”[9]

Our experience with clients in City jails affirms these findings. Beyond data and outcomes, visiting also provides immeasurable relief from the extreme stress of the jails. For our clients in solitary confinement, we are often the only people they see, other than occasional security staff, for days or weeks at a time. Others in General Population may get very few visits, even though they have family and friends who wish to support them. That should not be the case. However, the hardships of visiting at Rikers, in some cases coupled with unnecessary and humiliating security restrictions preclude many families and friends from being present during this difficult period. While we applaud the recent decision to restart a DOC bus that will bring visitors to Rikers, DOC has actively sought other policies and implemented other new practices to make visiting more difficult.

The Department has repeatedly argued that visiting restrictions are necessary to improve the security of the facility. For example, at the City Council Oversight Hearing on Violence in City jails on October 25, 2017, when asked what tool the Department needed in order to curb violence, and again at other more recent public hearings, DOC’s Commissioner Cynthia Bran said DOC sought more authority and autonomy to restrict and limit visits. If the primary concern of the Department is reducing violence, the Department should be working to improve access for visitors, make family visits more child-friendly, and reform the arduous visiting procedures to which families are subjected. Making visits more difficult and limiting physical contact will discourage family members from visiting, causing further isolation and desperation among the incarcerated population, thereby fomenting further violence.

DOC has not presented any compelling evidence to demonstrate that visitors are a significant source of contraband smuggling, but cited this purported concern when initiating its crackdown on visiting. To justify its request for a rule change to the BOC, the Department cited 29 individuals who were arrested with weapon contraband during the first 6 months of 2015. They also noted 24 weapons found in visiting rooms, although they do not define what constitutes a weapon. The Department stated that up to 1,500 people visit Rikers daily, though sadly that number has apparently declined by nearly a third in its most recent report.[10],[11] Starting with the Department’s data, if all the weapons referenced were smuggled in on one day – that would mean approximately 1,447 people (or 96%) had nothing to do with smuggling contraband.  To capture the full six-month period, the number of visits jumps to 270,000, meaning that 269,447 visits had nothing to do with contraband smuggling during that period.  It was absurd to adopt rule changes impacting hundreds of thousands of visits due to alleged smuggling by .0001% of visitors. What’s worse, by making visiting an unnecessarily degrading and arduous endeavor, the reduction in the number and frequency of visitors means that the benefits of regular family visits are forgone, to the detriment of overall safety.

The Department of Investigation has found that a large majority of contraband is smuggled into the jails by uniformed and civilian staff and has since directed its enforcement efforts accordingly.  BOC has found that a majority of weapons in the jails are made from materials found in the jails and not from smuggled items—another reason to shut down these decrepit facilities.[12] Either way, there is no justification for harsh limits on visiting.

To be clear: Adding curtailment of visiting rights to the list of sanctions available to DOC will only decrease safety and security in the facilities.

Ultimately, we must now secure the release of every person from Rikers Island and close the jails as quickly as possible.

Thank you for your time and consideration of our comments. If you have any questions, please feel free to reach out to Jared Chausow, our Advocacy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] NYC Board of Correction Lockdown Report (2018), available at: http://www1.nyc.gov/assets/boc/downloads/pdf/Reports/BOC-Reports/Lockdown-Report-Jan-8-2018.pdf.

[2] Ibid.

[3] NYC Council, Report of the Finance Division on the Fiscal 2018 Preliminary Budget – Department of Correction (2017), available at: http://council.nyc.gov/budget/wp-content/uploads/sites/54/2017/03/072-DOC.pdf.

[4] REPORT: The MOST PROBLEMATIC LOCAL CORRECTIONAL FACILITIES of NEW YORK STATE (New York State Comm’n on Corr. 2018), available at: http://www.scoc.ny.gov/pdfdocs/Problematic-Jails-Report-2-2018.pdf.

[5] NYC Dep’t of Corr., NYC Department of Correction at a Glance (2017), https://www1.nyc.gov/assets/doc/downloads/pdf/DOC_At_a_Glance-9-14-17.pdf.

[6] Steve J. Martin, et. al., Fifth Report of the Nunez Independent Monitor (Nunez Monitoring Team 2018), https://static1.squarespace.com/static/59578aade110eba6434f4b72/t/5ad78195aa4a99b89ba58ca9/1524072853887/5th_monitor_report_04.18.18.pdf.

[7] Sandra Villalobos Agudelo, The Impact of Family Visitation on Incarcerated Youth’s Behavior and School Performance (2013) at http://archive.vera.org/sites/default/files/resources/downloads/impact-of-family-visitation-on-incarcerated-youth-brief.pdf

[8] Ryan Shanahan and Sandra Villalobos Agudelo, The Family and Recidivism (2012) at http://archive.vera.org/files/the-family-and-recidivism.pdf

[9] Minnesota Dep’t of Corr. visiting information website at https://mn.gov/doc/family-visitor/visiting-information/

[10] NYC Dep’t. of Corr. visiting information website at http://www.nyc.gov/html/doc/html/visit-an-inmate/visit-schedule.shtml

[11] NYC Dep’t of Corr., NYC Department of Correction at a Glance (2017), https://www1.nyc.gov/assets/doc/downloads/pdf/DOC_At_a_Glance-9-14-17.pdf.

[12] New York City Department of Investigation, Commissioner Mark Peters, New York City Department of Investigation Report on Serurity Failures at City Department of Correction Facilities, November 2014.  Available at http://www.nyc.gov/html/doi/downloads/pdf/2014/Nov14/pr26rikers_110614.pdf

BDS TESTIFIES BEFORE THE NYC COUNCIL OVERSIGHT HEARING ON NYC’S PREPAREDNESS TO RAISE THE AGE

TESTIMONY OF:

Amy Albert – Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Written with Andrea Nieves, Senior Policy Attorney

Presented before

The New York City Council Committee on Juvenile Justice

and the Committee on Justice System

Oversight Hearing on

NYC’s Preparedness to Raise the Age

and

Reso. 0283-2018

April 18, 2018

My name is Amy Albert and I am a trial attorney with Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 35,000 cases involving indigent Brooklyn residents every year. I thank the New York City Council Committee on Juvenile Justice and the Committee on Justice System, and in particular Chairpersons Andy King and Rory Lancman, for the opportunity to testify about recommendations to ensure successful implementation of Raise the Age (RTA) legislation in New York City.

I am the Coordinator of the Brooklyn Adolescent Representation Team (BART), a specialized unit at BDS made up of dedicated attorneys and social workers that represent over two thousand adolescents ages 13-24 annually. During my tenure at BDS, I have defended hundreds of young people accused of crimes in Brooklyn’s criminal and Supreme Court. I currently carry a caseload of more than 100 16-24 year-olds charged with misdemeanors whose cases are adjudicated in Brooklyn’s adolescent diversion court part – APY2. Prior to joining BDS, I worked at the Legal Aid Society’s Juvenile Rights Practice representing youth in delinquency proceedings in Brooklyn. I am grateful for the opportunity to speak today about BDS’s suggestions for best practices as we move forward with a citywide implementation of Raise the Age.

Introduction

Last year, the New York State legislature passed a law to Raise the Age of criminal responsibility, a long overdue reform. The New York City Council and the Committees on Juvenile Justice and the Justice System can play a critical role in ensuring that the law is implemented effectively for the benefit of young people, their families and communities.

Below we outline a number of potential problems and suggestions for solutions.

Problem 1: Youth facing serious charges will continue to face adult consequences for adolescent behavior post-Raise the Age.

Advocates and legal service providers including Brooklyn Defender Services were deeply disappointed to learn that the bill that ultimately passed the legislature did not require “all kids, all crimes” to have their cases heard in Family Court. Instead, the legislature created a new system for so-called “Adolescent Offenders,” youth charged with more serious crimes. These youth will still be exposed to adult sentencing and incarceration in facilities run by New York State Department of Corrections and Community Supervision staff.

Unfortunately, this strategy of continuing to treat the most serious offenders as adults is contrary to a wealth of scientific research on adolescent development. Scientific research confirms that high-risk youth do not benefit from “severe punishment” but they do benefit from programming aimed at pro-social behavior. For example, an August 2015 federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) study followed over 1,300 youth charged with serious crimes in Pennsylvania and Arizona for seven years after their court involvement. The researchers found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement. But they did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.[1] Serious offenders in placement or receiving out-of-court services benefit the most from interpersonal skills programs (involving training in social skills and anger control) and behavioral programs. Critically, even serious violent offenders can benefit from these interventions.[2]

While boroughs like Brooklyn have robust and successful programming in place for misdemeanors and low-level cases, the City has not sufficiently invested in the kinds of programming that will most successfully end the cycle of re-arrest and conviction that plagues a small number of youth.

In Family Court, programs for youth charged with more serious offenses are generally offered or overseen by probation. In New York City, many of these programs have a long track record in promoting best outcomes for youth. However, in adult court, there are far fewer alternative to incarceration programs, and sometimes the only available options are programs run by the District Attorneys, rather than experts in rehabilitation like probation. The new Adolescent Offender parts should look to the model in family court and encourage new programming from probation.

In my experience, there are a few really strong community-based alternatives to incarceration programs for kids charged with serious crimes: Common Justice, Families Rising and Esperanza are all programs that have made a difference for many of my clients.[3] But these programs, because of their success, often have waitlists, or may have to exclude certain youth because of funding restrictions. The City Council should increase support for community-based programs like these, in addition to any programs run by the courts.

Solution A: Fund diverse and appropriate alternative to incarceration programs for adolescents in all five boroughs and increase support for existing successful programs.

Solution B: Require reporting from criminal justice stakeholders to ensure that Adolescent Offenders are, in the vast majority of cases, able to access alternatives to incarceration programs of the same quantity and quality as youth in Family Court.

Problem 2: Youth may face more intrusive interventions in Family Court for low-level adolescent behavior than they do in adult court.

Members of the Council may be surprised to learn that under New York law, youth may be exposed to more intrusive or lengthy interventions in Family Court for behavior that would be adjudicated more quickly in adult court.

In theory, more intrusive interventions may seem like a better way to address adolescent misbehavior; however, the research is clear: when it comes to youth, it is best to steer non-violent youthful offenders out of the criminal legal system as quickly as possible. Studies show that first-time offenders will never be arrested again, regardless of any intervention they receive. Almost 70 percent of youth who are arrested once are never arrested again. 20 percent of young offenders are re-arrested two or three times, with only six to eight percent falling into the category of three arrests or more.[4] Re-arrest rates appear to mirror the reality in the streets. A recent study found that 91.5 percent of justice-involved youth reported decreased or limited illegal activity during the first three years following their court involvement.[5] Re-offense statistics hold true whether or not first-time offenders are provided diversion interventions.[6]

Any changes to how we intervene with court-involved youth must aim to limit the potential for net widening. “Net widening” is the name given to the process of administrative or practical changes that result in a greater number of individuals being controlled by the criminal justice system. Research over the past thirty years has shown that prevention and early intervention policies in juvenile justice often subject more youth to formal justice system intervention. This results in the diversion of resources from youth most in need of interventions to youth who may require no intervention. Furthermore, because young people often fail to comply with programming or court requirements, consistent with typical adolescent behavior, longer monitoring periods set them up to fail and exposes them to more severe consequences, i.e. placement or continued monitoring, than they would receive in adult court.

For interventions to be effective, they should be swift, certain, and consistent.[7] Such interventions allow the young person to connect the negative behavior with the punishment. It also sends a consistent message about accountability and personal responsibility. When creating APY2 – the adolescent diversion court part in Brooklyn – stakeholders designed the court part with this research in mind. The court is a successful model for best practice interventions for young people charged in low level cases.

I have represented hundreds of young people ages 16-24 charged with misdemeanors in APY2 for low-level cases ranging from marijuana possession, jumping a turnstile, shoplifting and possession of fake id cases. Through these cases I am certain that in APY2 cases, the Center for Court Innovation (CCI), defenders, the judge and court staff, and the Brooklyn DA’s office have worked hard to provide proportionate and appropriate programming and sentencing. Almost every one of the sentences in these cases ends in an adjournment in contemplation of dismissal in which the case is held open for a period of time and then dismissed. When they do not, a violation plea is taken and the young person does not have a criminal record. CCI provides one, two and three session programming to which young people are mandated. Many of the cases are resolved at arraignments and there is only one follow up court appearance six weeks later to ensure that the young person has completed the mandate.

In Brooklyn, 16- and 17-year-olds charged with misdemeanors almost never receive a jail sentence of any kind. This fact is something Brooklyn court stakeholders are very proud of, and must continue to be the objective when these cases are transferred to Family Court.

In contrast to adult court, a 15-year-old charged with possession of marijuana or fare evasion may be provided an adjournment in contemplation of dismissal in Family Court but never at arraignments. Before any disposition is considered, their life is explored intensively. The youth and their family are required to report to probation for an adjustment interview, at which point the probation officer looks at their school record, their relationship with their parents, and their compliance with curfew. If any of these are of concern, a risk assessment instrument is completed, the case is sent to court, and there are a minimum of two court appearances before resolution. The adjournment in contemplation of dismissal is monitored and only awarded after another intensive interview with probation and both the young person and their parent. If the young person is found to have other concerns, the requirements are much more intensive. And if the young person continues to fail to comply, they are sometimes sent to placement for behavior that would simply not result in jail time in adult court.

Perceived fairness in the justice process is critical for a young person’s success with court mandated programming and/or services. My young clients regularly say to me, “they found me smoking” (marijuana) on Ebbets Field and now they want me to do months of programming and are worried about the fact that I dropped out of school?  Adults are ridiculous.”  When I hear my young clients say this, I know that this is often the point when we may lose their buy-in, with potentially serious consequences. The research bears this out; when young people perceive court procedures to be unfair, they reoffend at higher rates.[8] It is crucial that the Council provide oversight of corporation counsel, probation and ACS to ensure that any interventions in low-level cases are as narrowly tailored as possible to prevent net widening.

Raise the Age is an opportunity for New York City to treat our 16- and 17-year-olds more fairly and to reduce net widening in the juvenile justice system. We offer the following recommendations to make this happen.

Solution A: Encourage the family courts to use APY2 as a model for short, targeted interventions that will minimize the potential for net widening. The Council can do this by funding new pilot programs like those created by CCI for APY2.

Solution B: The Council should make clear that placement for youth charged with misdemeanors is not acceptable. The Council should require ACS, corporation counsel and probation to report the number of 16- and 17-year-olds charged with all crimes and the dispositions in those cases, including placement. This information should be disaggregated by age, race, and borough (without confidential information). Reporting on dispositions in family court cases are critical for the city to maintain proper oversight.

Problem 3: Parents of teenagers need support in their communities and alternatives other than calling the police to resolve domestic conflict

A large percentage of my caseload involves youth who become justice-involved after a dispute with their parents, siblings or other people in the home. Young people and their families could be invaluably served if youth had a safe place to stay while both sides had time to cool off after a disagreement. Public defenders in Brooklyn serve around 500 16- and 17-year-olds every year, a vast majority of whom are not being served by Runaway and Homeless Youth providers because of the lack of services in Brooklyn. About half of the youth are made homeless by the criminal justice system when the court issues an order of protection against the youth for 90 days after a criminal allegation involving a domestic disturbance, making it illegal for the young person to return home.[9] The other half disclose to their defense team that they are living with friends or significant others because of a breakdown of the relationship with their parents.

Right now, too many of our clients live in the streets, “couch surf” or sleep on the floors or couches of friends, neighbors or even strangers. Indeed, homeless youth are more likely to be arrested, engage in criminal activity to meet their survival needs, or engage in unsafe sexual relationships or the commercial sex trade because they need a place to sleep. A 2013 study by Covenant House and Fordham University found that 1 in 4 of the surveyed homeless youth became a victim of sex trafficking or was forced to provide sex for survival needs, such as food or a place to sleep. Of these victims, about half reported that the number one reason they had been drawn into commercial sexual activity was because they did not have a safe place to sleep.

Many of these youth wouldn’t have become homeless if they and their families had a neutral, safe place to go where they can mediate their differences, figure out a family member that the youth can stay with, or collaborate with a case manager about long-term placement options. Adolescent Respite Centers provide parents and youth with a safe place for the youth to stay while both parties cool off. New York State Assembly Members Andrew Hevesi and Joseph Lentol published an opinion piece in City & State calling for the creation of respite centers with state social services funds in 2015.[10]

I recently opened a respite center in Jersey City, where I live, thanks to the support of Jersey City. At Haven Adolescent Community Respite Center, we provide a three tiered intervention for youth and families in conflict. Haven provides peer based support programs for youth and parents/guardians of teens, psycho-educational interventions designed to help young people and their families to develop communication and conflict resolution skills, and we provide respite care for up to 90 days. Referrals are made as a diversion from police and court systems, from a variety of community organizations, and based on word of mouth. Our programs are focused on supporting youth and their families in strengthening their relationships and bolstering their resiliency. Rather than focusing on which party is to blame, we focus on creating proactive solutions that acknowledge racism, poverty, the role that mental health issues and substance abuse play, and the challenges that immigration, teen pregnancy and issues facing LGBTQ youth present. Most youth return home or to the home of a family member or friend with the consent of their guardians.

In addition to respite centers, we also need more beds for youth who are already homeless. The existing RHY shelter system is woefully underfunded and consequently fails to adequately meet the needs of homeless youth in boroughs like Brooklyn. Kings County alone needs at least 300 crisis shelter beds to ensure that no Brooklyn youth is forced to sleep on the street, sleep on the train, couch surf, or trade sex for shelter. Right now there are only a handful of crisis shelter beds in Brooklyn and they are only for youth who identify as LGBTQ. The vast majority of runaway and homeless youth must seek crisis shelter beds in Manhattan where they are too often turned away for lack of beds. Runaway and homeless youth have been made homeless by failures of the education system, juvenile and adult justice systems, the foster care system, and adults who have failed to properly care for them. The City can and must address the youth homelessness crisis by opening youth crisis shelters in Brooklyn, the Bronx, Staten Island and Queens.

RFY providers have been unable to open new crisis shelters in boroughs like Brooklyn because the City currently does not fund capital investments. The City should assist RHY providers to locate and secure bed space in Brooklyn as landlords are often reluctant to lease to shelter providers. Even better, the City could renovate existing City buildings such as old hospitals or schools for this purpose and then issue RFP contracts for use of these spaces. Additionally, DYCD’s RFPs should include funding for capital expenditures, a current barrier to instituting new beds under the existing DYCD funding scheme. Finally, the RFP should reflect the actual cost of running a crisis shelter bed, as opposed to the current inadequate reimbursement rate. This number must include the provision of wraparound support services for youth housed at the crisis shelter. The availability of high-quality services is critical to the ability of New York’s homeless youth to break the cycle of homelessness and court involvement.

Solution A: The Council must work with your colleagues at the State legislature, DYCD, ACS and other stakeholders like BDS to establish and fund respite centers that will be available to provide support to families in crisis – both families that are already court-involved and those who are at risk of becoming so involved.

Solution B: Support the opening of RHY crisis shelters, which provide housing for homeless youth, in all five boroughs. The City must provide reimbursement for capital investments to RHY service providers to allow them to open crisis shelters in the outer boroughs.

Resolution 283-2018

BDS supports Resolution 283-2018 which calls upon the Governor to coordinate a review of cases involving persons convicted of a crime at the age of 16 or 17 years of age, before Raise the Age legislation went into effect, who are currently incarcerated or are sentenced in criminal court to ensure those sentences are equitable and just. By passing this Resolution, the Council sends a powerful message to the Governor, state lawmakers and the public that the City believes that all 16- and 17-year-olds should be treated fairly and in an age-appropriate manner, whether they were sentenced before October 1, 2018 or after.

 

Conclusion

Raise the Age provides an opportunity for City Council to pay greater attention to how youth are treated in our criminal and juvenile justice systems. We urge you to increase reporting requirements for relevant agencies so that the city can continue to assess the efficacy of our efforts at reform. We also urge you to increase funding for related programs such as alternative to incarceration programs, respite centers and RHY shelters. The reasons for youth court-involvement are diverse and sometimes complicated. But we can go a long way towards minimizing harm to youth and their communities by fostering transparency and investing in alternatives to jails and prisons.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Andrea Nieves, Senior Policy Attorney, 718-254-0700 ext. 387 or anieves@bds.org.

[1] Thomas A. Loughran, Robert Brame, Jeffrey Fagan, Alex R. Piquero, Edward P. Mulvey, and Carol A. Schubert, Studying Deterrence Among High-Risk Adolescents, OJJDP Juvenile Justice Bulletin (August 2015), available at http://www.ojjdp.gov/pubs/248617.pdf.

[2] Mark W. Lipsey, David B. Wilson, and Lynn Cothern, Effective Intervention for Serious Juvenile Offenders, OJJDP Juvenile Justice Bulletin (April 2000), available at https://www.ncjrs.gov/pdffiles1/ojjdp/181201.pdf.

[3] Learn more about these three alternative to incarceration programs on their websites, located at https://www.commonjustice.org/ (Common Justice), https://www.nyfoundling.org/program/juvenile-justice/ (Families Rising), and https://www.esperanzany.org/ (Esperanza).

[4] Center on Juvenile and Criminal Justice, “Widening the Net in Juvenile Justice and the Dangers of Prevention and Early Intervention” (August 2001), 4-6,available at http://www.cjcj.org/uploads/cjcj/documents/widening.pdf. See also Marvin E. WolfgangRobert M. Figlio, and Thorsten Sellin, Delinquency in a Birth Cohort, Chicago: University of Chicago Press, 1972; Michael Schumacher and Gwen A. Kurz, The 8% Solution: Preventing Serious, Repeat Juvenile Crime, Thousand Oaks, California: Sage Publications, 1999.

[5] Edward P. Mulvey, “Highlights from Pathways to Desistance: A Longitudinal Study of Serious Adolescent Offenders,” OJJDP Juvenile Justice Bulletin (March 2011), available at https://ncjrs.gov/pdffiles1/ojjdp/230971.pdf.

[6] Ted Palmer and Roy V. Lewis, An Evaluation of Juvenile Diversion, Cambridge: Oelgeschlager, Gunn & Hain, 1980.

[7] Office of Juvenile Justice and Delinquency Prevention, Combating Violence and Delinquency: The National Juvenile Justice Action Plan, Washington, D.C.: U.S. Department of Justice, 1996.

[8] Tamar R. Birckhead, Toward a Theory of Procedural Justice for Juveniles, 57 Buff. L. Rev. 1447, 1458-59 (2009).

[9] As a matter of practice in Brooklyn, prosecutors regularly ask for and judges regularly issue a full order of protection in cases involving “domestic violence”, even though these are normal disputes between teenagers and their parents. Full Orders of Protection, in effect, usually render our young clients homeless. In contrast, in New Jersey, when EMT’s respond to a domestic disturbance involving a youth, they take the youth to the Emergency Room rather than arresting them. If NYC were to adopt this approach 250 youth in Brooklyn every year would avoid court-mandated homelessness.

[10] Andrew Hevesi & Joseph Lentol, Opinion: Respite Centers Would Keep Teens Off Streets, Out of Prison, City & State, July 10, 2015, available at https://cityandstateny.com/articles/policy/centers-would-keep-teens-off-the-street%2C-out-of-prison.html.

BDS TESTIFIES BEFORE THE NYC COUNCIL BUDGET HEARING ON IMMIGRATION

TESTIMONY OF:

Nyasa Hickey – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES

Presented before
The New York City Council
Budget Hearing on Immigration
March 26, 2018

I. Introduction

My name is Nyasa Hickey. I am a Supervising Attorney of the Immigration Practice at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the impact of increased immigration enforcement and the need for significantly increased funding in order to meet the needs of the communities we serve.

BDS is a full-service public defender office in Brooklyn, representing nearly 35,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. Our immigration practice is composed of 27 full-time immigration attorneys, one law graduate, five paralegals accredited by the Board of Immigration Appeals, two social workers, five legal assistants and three Immigrant Justice Corp Legal Fellows representing more than 1,000 immigrant New Yorkers every year. We are a Board of Immigration Appeals-recognized legal service provider.

Our three immigration practice areas include:

· The BDS Padilla Team advises BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas to help avoid or minimize negative immigration consequences. About a quarter of BDS’s 30,000 criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or loss of opportunity to obtain lawful immigration status as a result of their criminal case. Our eight criminal-immigration specialists provide support and expertise on thousands of cases, including advocacy regarding enforcement of the NYC detainer law as well as with ICE officials to secure the release of our clients while charges are pending against them.

· The New York Immigrant Family Unity Project (NYIFUP) is the New York City Council funded first-in-nation program providing counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 1000 people in deportation proceedings. Jointly the NYC NYIFUP providers have won release from ICE custody for over 900 clients and won the cases of over 500 clients, with hundreds of cases still pending. The Vera Institute of Justice’s comprehensive November 2017 study found that 48% of NYIFUP cases end successfully – a 1,100% increase from the rate for unrepresented cases before NYIFUP.

· BDS’s Immigrant Youth and Communities Team has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings. Highlights of our work include representing young clients in their pursuit of Special Immigrant Juvenile Status (SIJS) or Deferred Action for Childhood Arrivals (DACA) and working with Haitian and Central American New Yorkers to file or renew applications for Temporary Protected Status (TPS).
II. Client Stories

Public defender offices like BDS are uniquely situated to advocate for New Yorkers whose criminal or family court involvement threatens their ability to modify their immigration status and lawfully remain in New York with their children and families.

Just this month BDS obtained a remarkable result for our non-citizen youth client Daniel (name changed to protect his identity) because of the joint efforts between our criminal practice, Padilla team, and NYIFUP team. ICE arrested Daniel in criminal court early this year even though he had no criminal convictions and the pending misdemeanor case was scheduled to be resolved with an ACD. After he was detained, Daniel’s mental health immediately deteriorated. The criminal defense team worked with the District Attorney’s office to bring Daniel to court to finalize his criminal case so that he would be eligible for a bond hearing in Immigration Court. Daniel is eligible to adjust his immigration status as the spouse of a US citizen, and his Padilla attorney immediately filed the application to begin the process. He also collected the documents that would be helpful at Daniel’s bond hearing. Because of the complex coordination of a variety of BDS attorneys and social workers, when Daniel finally did get to see the immigration judge after six weeks in detention, a bond hearing was immediately held – a rarity at this relatively early stage in a case – and the immigration judge released Daniel on his own recognizance. After 40 heart-wrenching days in detention, during which time Daniel’s mental health had suffered tremendously, Daniel was returned to his loving wife and children and is on his way to obtaining legal immigration status.

Because of our unique role as both public defender and NYIFUP provider, BDS is able to advocate on a continuum. We want and believe that we should be able to provide this kind of complex and comprehensive representation to all of our non-citizen clients, not only to those clients who will be assigned a NYIFUP attorney, but also to clients who are not detained with removal proceedings, those who have prior orders of deportation, and those who are eligible to apply affirmatively for immigration status.

While hundreds of our Padilla clients have the potential to modify their status, and need our assistance, we are unable to take on the majority of their cases because we lack the capacity. Now because of increased enforcement, these clients are at a heightened risk of deportation by ICE because of their criminal justice or family court involvement. Our clients, many accused of low-level charges and with no prior convictions, have been targeted by ICE at their home, in the community, at work or in court. Our criminal and family courts are becoming an increasingly unsafe place for our immigrant clients and while providing representation upon detention through the NYIFUP program is critical to minimize some of this harm to our communities, it is not enough.

We are here today to ask for increased funding for immigration legal services generally, and Brooklyn Defender Services in particular, to help New York City live up to its aspiration of truly being a sanctuary jurisdiction that values and protects all of its citizens, including immigrant New Yorkers.
III. The Effect of Increased Enforcement on Clients in Local Courts

The worst fears that we expressed last year at the 2017 Immigration Committee Budget Hearing about increased federal enforcement have come true. The Trump Administration has been aggressively targeting people who come into contact with the criminal justice system with open criminal charges, regardless of the individuals’ criminal history, the relative innocuousness of the allegations, particular vulnerabilities such as medical or mental health needs, the person’s role as caretaker to others and/or the age of the immigrant or the likelihood of success in the deportation case. This was the case for Daniel, whose story is described above and it is the case for many other clients who need the continuum of immigration services that starts with a proper screening and ends with the ability to fully advise and file applications for status. The NYPD’s ongoing policy of broken windows policing adds to the problem by placing thousands of immigrants into ICE’s crosshairs for the most minor offenses, destroying families and harming communities.
a. Broken Windows Policing Leads to Deportation

NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking. Fingerprints collected by the NYPD are transmitted to the FBI, who in turn share them with the Department of Homeland Security, often leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being apprehended by ICE at home, at work, or in their community. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly places thousands of immigrants at serious risk of permanent harm every year.

b. ICE in Courts

Since we last testified about ICE arrests in courts in 2017, arrests in and around Brooklyn courthouses have increased 1,100%, according to the Immigrant Defense Project report. An estimated 28% of the undocumented immigrants targeted by ICE had no prior criminal history. The majority of people caught up in this wave of enforcement were reporting to court on low-level offenses, many for traffic violations. Since the beginning of this year alone Brooklyn Defender Services have had 17 of our criminal defense clients arrested by ICE in or outside the courthouse or in the community because of pending criminal allegations, mostly misdemeanors.

Our immigrant clients and their family members are rightly terrified to appear in court. But they cannot modify their immigration status if they have an open criminal case, and they cannot resolve their criminal or family case if they fail to appear in court.
IV. The Effects of Increased Enforcement in Federal Court

Last year we shared with the Council the many challenges facing our immigration attorneys in immigration court. In addition to rising caseloads, we also reported that our clients seeking asylum were no longer being released on bond, that we increasingly saw ICE targeting people who had won immigration relief but had not yet received their visas or green cards, and that non-detained clients were being taken into ICE custody both at Order of Supervision (OSUP) appointments and when they reported to immigration court. These issues continue to harm our clients.

In the recent decision Jennings v. Rodriguez, the Supreme Court held that federal immigration law authorizes the prolonged detention of immigrants during their removal proceedings without the chance for even a 5-minute bond hearing – detention that can last months or even years as people fight their cases. This decision erases many of the gains we had won since our landmark win in Lora v. Shanahan, a case involving a BDS NYIFUP client, under which hundreds of New Yorkers have been released on bond since 2015. All of the NYIFUP providers remain committed to challenging our clients’ indefinite detention in federal court. But we are asking for additional resources in the next fiscal year to continue this fight (see section VII below).
V. Criminal Carve-Out

Last year the Council significantly increased funding for immigration legal services including NYIFUP. We were grateful to utilize these much-needed resources, but the money came with some troubling restrictions. The Mayor insisted that NYIFUP funding not be used to represent people convicted of any of the “170 crimes” listed in the Department of Corrections Detainer Discretion administrative code law. Since July 2017 when the Mayor’s policy change went into effect, 61 clients with convictions on the 170 list were represented by NYIFUP, all of whom could only be represented through a private funding stream that we fear will not be renewed in the coming year.

It is our understanding that the Mayor intends for ALL immigration contracts to contain the same restriction, even if the person has a claim to status, has a green card or has been in this country for years or decades.

As a public defender office, our mission is to provide the highest quality representation to all people, regardless of their charge or past record, their immigration status, their race, sexual orientation, gender expression or identity, or religious beliefs. There should be no disqualifying factors when it comes to legal representation because without an attorney, the laws are impossible to navigate. We strongly oppose the Mayor’s policy of limiting legal representation, particularly based solely on a particular conviction without further analysis or exception. Given the sharp racial disparities in arrest, prosecution and conviction, the Mayor’s policy both exacerbates these prejudices and deprives people of a chance to rectify further injustice. Furthermore, the policy is an attack on universal due process and undermines our city’s commitment to equal justice under the law.

We urge the City Council to reject any exclusions to representation except for financial eligibility and work with providers to ensure that all New Yorkers have access to immigration legal representation.
VI. Increased Need for FY2019

a. NYIFUP

The Council’s commitment to universal representation for every detained person who meets the income requirements of NYIFUP has been a critical investment in the rights of New York City’s immigrant population. Now more than ever it is essential to ensure that every person who comes before immigration court in New York City is afforded the right to make his or her case. BDS attorneys have represented hundreds of clients who have been able to stay in the United States because of an immigration remedy they would not have known about and could not have proven without an attorney. This includes many who were convicted of crimes that we later successfully vacated or which did not preclude an immigration remedy. We have uncovered that many clients, including those whose criminal history falls within the “170 criminal carve-out,” were actually U.S. citizens, but often never had the resources or tools to find the evidence to prove their citizenship until they were appointed a NYIFUP attorney. NYIFUP is the strongest example of our City’s commitment to immigrant New Yorkers and due process, made stronger still by a commitment to universal representation without exception.

The NYIFUP providers are requesting continued funding of $10 million ($3.33 million per organization) to continue protecting New York families from facing a harsh detention and deportation regime alone. NYIFUP has been a model of access to justice nationwide and has inspired replication in many cities that want to stand beside their immigrant communities at a time of increased indiscriminate enforcement and hostility. We hope that for FY 2019, the City Council will continue to send the message that in New York, no family should be separated by deportation because they could not afford an attorney.

b. Continuous representation for Padilla clients

More than 20% of our criminal defense clients were born outside of the U.S. We meet and in many cases exceed the obligations required by the U.S. Constitution under Padilla when we identify a client who has an opportunity to obtain status. Unfortunately, we are not able to assist every client who is eligible for an immigration remedy due to insufficient staff and resources to make this happen, despite our strong desire to do so.

The most efficient way for the City to fund immigration legal services for people with criminal or family court involvement is to fund representation for those clients through the criminal and family defense contracts negotiated and administered by the Mayor’s Office of Criminal Justice (MOCJ). However, the substantial delays in our criminal contract as well as the inadequate funding in our family contracts have created a reduction in immigration services rather than an increase.

We call upon the Council to work with MOCJ to ensure that comprehensive Padilla and Padilla-plus representation are included in our criminal and family court contracts so that all immigrant New Yorkers who come through our doors are able to receive the high-quality immigration legal services that they require in-house.

c. Immigrant Opportunities Initiative (IOI)

This year, Brooklyn Defender Services requests $200,000 for our Immigrant Youth and Communities Team to continue serving Brooklyn with high-quality, comprehensive immigration legal services. With this funding, BDS will provide immigration status and rights screenings, advice, and direct representation in pursuit of affirmative immigration benefits such as citizenship, lawful permanent residence, special trafficking and victims’ visas, VAWA relief, TPS and DACA, and in their defense against deportation in non-detained deportation proceedings, including motions to reopen prior orders of removal, an area where there is a great need for advocacy.
VII. Conclusion

The Council plays a critical role in safeguarding the vibrancy and strength of New York City’s immigrant community. This Council has been a national leader in the creation of a first-in-the-nation assigned counsel, NYIFUP program. The allocation of funding to provide legal services to low-income vulnerable immigrant New Yorkers without any criminal history restrictions is one of the most important ways that this Council can send a clear message to reassure the immigrant community that this city values and stands behind every single immigrant New Yorker.

Furthermore, the Council should ensure that the Mayor’s Office of Criminal Justice continues to provide adequate immigration resources for us to screen and serve all of our non-citizen clients.

Finally, BDS requests additional funding through the Immigrant Opportunities Initiative to add staff that will provide essential direct immigration services to our clients.

BDS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL COMMITTEE ON JUSTICE SYSTEM – ISSUES WITH CRIMINAL DISCOVERY PRACTICES

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Justice System

Oversight Hearing – Issues with Criminal Discovery Practices

February 27, 2018

Introduction
My name is Lisa Schreibersdorf and I am the Executive Director of Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in nearly 35,000 cases in Brooklyn every year. I thank the City Council Committee on Justice System and Chair Rory Lancman for the opportunity to testify today about discovery practices in Brooklyn and the need for statewide statutory reform.

As we discuss the unfairness of our New York’s discovery statute, it is important for me to first recognize that the Kings County District Attorney’s Office has a two decade long commitment to providing a wide range of discovery to defense counsel in a timely manner.

Yet even a good policy is no substitute for legally required discovery that will ensure early, complete discovery with consequences to individual prosecutors who fail to comply with the statutory requirement. New York is one of the four states with the most restrictive discovery laws in the country, along with South Carolina, Wyoming and Louisiana. The time to reform our discovery statute is long overdue. I hope the Council will work with us to improve disclosure in all five boroughs and to advocate for comprehensive reform at the state level.

Client Accounts[1]

Johnny – Innocent of Robbery, Case Dismissed at Trial

Last year, BDS represented Johnny, a Brooklyn man who was wrongfully accused of attempted robbery of a taxi cab driver. The driver alleged that Johnny pulled a gun on him and attempted to rob him during the cab ride. Johnny adamantly refuted this, insisting that, in fact, the cab driver had pulled the gun on him. Johnny always asserted his innocence and his criminal defense attorney took the case to trial, even though he had not been able to find any evidence to support Johnny’s account.

Midway through trial, Johnny was vindicated. The Assistant District Attorney on the case informed BDS that she had only just spoken with the witness who called in to 911 to report the crime. Even though we had received the 911 call transcript under the Brooklyn D.A.’s open-file discovery policy, the witness’s name and contact info were redacted. After placing the 911 call, the witness told the prosecutor that she saw the driver pull the gun out and threaten our client. The prosecutor informed BDS and the case was dismissed. Our innocent client was able to walk free after months of unnecessary litigation.

Under New York law, the prosecutor was not required to turn over the names and contact information of witnesses, in stark contrast to most other states that would have required such disclosure to defense counsel. If Johnny had not insisted upon a trial, and had the witness not come forward during that trial, he would have become another innocent New Yorker, serving a prison sentence and saddled with a lifelong criminal record.

Jason – Prosecutors Turned over Relevant Discovery and it Resulted in a Fair Outcome

Jason was charged with the burglary of a bodega for conduct that was clearly related to his ongoing and serious substance abuse problem. Jason was accused of taking a dozen soft drinks, four packs of cigarettes and money from the case register. Our client initially insisted that he was innocent because he had no recollection of the events. However, two months into the case, during which Jason had been detained at Rikers and chose to fight the charges, the prosecutor turned over video surveillance footage, a videotape of his confession, and police reports. The prosecutor then made an offer of two to four years in prison. Upon viewing the discovery together with his defense attorney, Jason was able to see confirmation that he did stumble into the bodega and take the soft drinks and cigarettes. He appeared visibly intoxicated in the video. Critically, the surveillance footage did not confirm the bodega’s assertion that he took money from the cash register. The videotaped confession showed Jason that he did, in fact, confess in detail to taking the cigarettes and soft drinks and that he did it so he could resell the items to support his drug habit.

Because he was able to see the evidence, Jason had more confidence in his defense attorney and agreed to work with a social worker. Working together, the defense attorney and social worker were able to get Jason into an inpatient drug treatment program. Because the video showed visible intoxication and that Jason had not gone into the cash register, the defense team was able to negotiate a more appropriate plea: drug treatment in lieu of incarceration. Seven months after arrest, Jason was released from Rikers Island into treatment. A year later, he has been sober for the longest period of time since he was 15 years old. In this case, discovery resulted in a more appropriate disposition.

Discovery in New York

New York State’s current discovery statute, C.P.L. 240, passed by the state legislature in 1979, does not require disclosure of the most critical evidence until a jury has been sworn, directly implicating the ability of people accused of crimes and their attorneys to investigate the allegations and mount an effective defense. It is no surprise that this “trial by ambush” practice has led to a slew of well-documented wrongful convictions in New York, with new exonerations every year.[2] But most people in Brooklyn, as in most jurisdictions, do not go to trial. They accept negotiated plea bargains. And often this happens without the benefit of knowing the detailed allegations against them.

Even in Brooklyn, where there is a strong commitment to open file discovery, there are many cases where plea bargains are offered prior to any evidence having been turned over. Some of these offers take place prior to indictment, a procedure that is currently being encouraged by the Chief Judge. In such situations, the defense has no information about the case other than what the District Attorney has expressed verbally at the arraignment or otherwise. Yet these types of offers are naturally time limited and must be accepted the same day or they are withdrawn. Other types of offers take place at early stages in the case and may precede the provision of discovery. In many cases, the discovery is incomplete because certain items have not been provided to the District Attorney by the police yet.

The majority of states, including those in which most major cities are situated, have passed open file discovery laws over the past 40 years. Broad discovery is provided to defendants in cities such as Los Angeles, Chicago, Philadelphia, Miami, Detroit, Boston, Phoenix, Charlotte, Denver, Seattle, San Diego, and Newark. New Jersey enacted expedited and liberalized criminal discovery in 1973; Florida did so in 1968. Texas and North Carolina enacted open discovery statutes in 2014 and 2004, respectively, and Ohio made its relatively broad discovery rules even more inclusive and open in 2010. No state that has enacted more open discovery rules has later gone back to impose more restrictive ones.

Discovery reform is long overdue in New York and is a priority issue for BDS in 2018. Even if the state legislature does not act, the City can and should do more to encourage prosecutors to turn over all of the evidence in the case early and automatically. In part, this requires NYPD to do a much better job of turning their reports and other evidence over to the DA’s office.

Brooklyn-Specific Concerns

Discovery by Stipulation Policy

The Kings County District Attorney’s Office has an official “Discovery by Stipulation” (DBS) policy. In lieu of written motion practice, prosecutors provide discovery to the defense on an ongoing basis.[3] The DBS policy has now been in effect in Brooklyn for over two decades and has improved outcomes for clients and streamlined court efficiency. A few years ago, we reviewed our internal data and found that, on average, open file discovery in a case reduces the length of time between arraignment and disposition by six months as compared to cases where we do not receive discovery. The current District Attorney has agreed to continue and improve the timely disclosure of evidence and we support those efforts.

However, because assistant DAs in Brooklyn are not statutorily required to turn over discovery, there are a few problems with the voluntary policy of our DA’s office.

  1. Delays occur because prosecutors have no mandated timelines for disclosure.

It can take weeks or months for prosecutors to turn over all the information such as police reports, forensic evidence, grand jury minutes, search warrant materials, and Rosario[4] material. This is particularly true for evidence that exists outside of the police file (for example, medical or school records maintained by third parties). While disclosure is delayed, many of our clients are awaiting trial on Rikers Island or making multiple visits to court, resulting in missed time at work and school and other harmful consequences for our clients. Opportunities to investigate and prepare the case are delayed or lost entirely as well.

  1. Discovery is turned over in a piecemeal fashion.

Prosecutors in Brooklyn turn over discovery piecemeal at various points over the duration of a case. This contributes to cases where certain documents are never turned over. At times it seems as if the burden is on defense attorneys to point out gaps in the discovery to the courts and prosecutors in order to ensure complete compliance. In other states, the burden is on the prosecutor, which is where it should be, to obtain all evidence, reports and paperwork and turn over their entire file to the defense. Open file discovery is not a substitute for a similar procedure in New York.

  1. Discovery is not uniformly turned over in all cases.

For example, certain bureaus, such as the Homicide Unit, are explicitly exempt from the office’s DBS policy. In these cases, the DA’s office still requires defense attorneys to engage in protracted omnibus motion practice and materials relating to the case may be turned over at the last minute or never at all in the case of a plea bargain.

  1. DA’s often do not make forensic evidence and its underlying testing readily or rapidly available, instead requiring us to request access it.

In order for people charged with crimes to present a full and fair defense in their cases, they need complete and quick disclosure of all of the evidence. This is particularly true in cases involving forensic evidence which “often [has] decisive power in the judicial system.”[5] Such evidence, often the key evidence in the prosecution’s case, may be withheld from the defendant for months. In our experience, while it is now routine in Brooklyn for final reports or analyses to eventually be turned over, we still often have to litigate, obtain subpoenas, or at least engage in a prolonged back and forth to obtain other critical forensic evidence in the case. Forensic evidence is analyzed by a supposedly neutral party and should be immediately available to both sides of a case.

In cases involving DNA, a defendant cannot effectively challenge the evidence without access to the electronic raw data because that data is subject to interpretation by both the software program which processes it and the analyst who constructs the DNA profile. Yet in our experience, OCME will only turn over this information in response to a court-ordered subpoena. Judges respond inconsistently to defense requests for a subpoena, leading to variability across judges and jurisdictions.

Justice demands that where DNA is at issue in the case, the defendant and his or her expert should have early and automatic access not only to the electronic raw data, but all of the underlying information related to the DNA in his or her case, including a complete record of all bench notes.

  1. Controlled substances are not tested in a timely manner, or prosecutors fail to disclose lab reports that show no evidence of controlled substances in a timely manner.

There are frequently long delays in turning over lab reports proving that an item recovered from our client is, in fact, drugs. In our experience, there are numerous cases where the lab report shows there was no controlled substance. Unfortunately, many people plead guilty to these cases before the lab report is returned in order to get off Rikers Island.

  1. Examining physical evidence can be difficult.

Physical evidence can play a critical role in corroborating or contradicting prosecutors’ accusations. In other states where prosecutors are required to turn over physical evidence to the defense for inspection and testing, there are regular processes in place to streamline this process. However, in Brooklyn, prosecutors and police are under no such statutory obligation and often present roadblocks to the defense’s viewing of the evidence in their client’s case. Even if the statute does not immediately change, New York City prosecutors’ offices could put policies in place to ensure that such inspection happens early on in the case and in a manner that is easy and accessible for all parties.

  1. We still experience disclosure of critical evidence at the eve of trial or a hearing.

It is quite common in cases that go to trial, for additional discovery to be turned over at the last minute. This may be because during preparation, the prosecutor realized there were more documents, or finally went through the file in a more thorough manner. Although it is rare, there are also some individual Assistant District Attorneys that intentionally hold back certain documents until they are legally required to turn them over, in violation of their office’s policy. Needless to say, these last minute disclosures are apt to cause additional delays as well as serious concern about the integrity of the individual ADA and the perceived efficacy of the DA’s policy.

  1. Discovery is often not turned over before prosecutors require a decision on a plea offer.

More than 98% of cases in New York City never make it to trial; they end in either dismissal or plea bargain. As Jason’s case so neatly illustrates, discovery is crucial to ensuring the proper outcome in the case, including the plea bargain that will best serve the defendant and the community. Yet in many of our cases, prosecutors or the judge may demand an answer to a plea offer before they have turned over critical pieces of evidence.

  1. There are no penalties for failure to disclose.

A robust discovery statute must include penalties for prosecutors if they fail to turn over discovery to the defense in a timely manner. Because DBS is a policy and not a law, defense attorneys and the courts have no legal way to hold the DA accountable so long as they comply with the letter of the deeply flawed C.P.L. 240.

Subpoenas

Something that is not often discussed as it relates to discovery is the subpoena power of the defense attorney. In the 1980’s and part of the 1990’s, defense attorneys routinely sought police reports through judicially-ordered subpoenas. Sometime in the 1990’s, the NYPD started moving to quash these subpoenas, after which a body of case law developed that eliminated this method of viewing the police reports. If this were changed by the City Council, some of the most important documentation in our cases could be made available despite the legislature’s failure to act on discovery reform.

Conclusion

Brooklyn has a strong history of providing discovery in most cases. Even so there are flaws with a system that depends on hundreds of Assistant District Attorneys to comply with an internal policy.

However, given the state of the law as it exists right now, Brooklyn is a good model for how a prosecutor’s office can safely and effectively make the system fairer and we encourage other offices to follow suit.

If you have any questions, please feel free to reach out to me at 718-254-0700 ext. 105 or to Andrea Nieves, BDS Policy Team, 718-254-0700 ext. 387 or anieves@bds.org.

[1] All names have been changed to protect our clients’ confidentiality.

[2] See, e.g., Innocence Project, Press Release: Brooklyn Man Exonerated After Nearly Three Decades in Prison; Declared “Actually Innocent” by Brooklyn D.A. Conviction Review Unit, Dec. 20, 2017, available at https://www.innocenceproject.org/brooklyn-man-exonerated-after-nearly-three-decades-in-prison-declared-actually-innocent-by-district-attorney-offices-conviction-review-unit/see also Murray Weiss, Wrongful Convictions in Brooklyn Due to ‘Systemic Failures,’ DA Says, DNA Info, April 18, 2016, available at https://www.dnainfo.com/new-york/20160418/gramercy/wrongful-convictions-brooklyn-due-systemic-failures-da-says.

[3] New York County Lawyers’ Association, Discovery in New York Criminal Courts: Survey Report & Recommendations (2006), available at https://www.nycla.org/siteFiles/Publications/Publications227_0.pdf.

[4] Rosario material includes any statements of a witness who will testify at trial. Police forms that summarize a witness statement, a signed statement by a witness, and paperwork prepared by a testifying police officer are examples of Rosario materials. Under CPL 240, Rosario material must be given to the defense before the opening statements at trial. See People v. Rosario, 9 NY2d 286 (N.Y. 1961).

[5] Itiel D. Dror, Cognitive neuroscience in forensic science: Understanding and utilizing the human element, 370 Philos. Trans. R. Soc. London B. Biol. Sci. 1674 (2015).

BDS TESTIFIES BEFORE NYC OVERSIGHT HEARING ON EXAMINING FORENSIC SCIENCE PRACTICES IN THE NYPD CRIME LAB AND OCME.

TESTIMONY OF:

Guy Raimondi – Supervising Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Written with Andrea Nieves, Senior Policy Attorney

Presented before

The New York City Council Committees on Health and Public Safety

Oversight Hearing – Examining Forensic Science Practices

in the NYPD Crime Lab and OCME

December 14, 2017

Introduction

My name is Guy Raimondi and I am a supervising attorney in the criminal defense practice for Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, in nearly 40,000 cases in Brooklyn every year. I thank the City Council Committee on Health and Public Safety and Chairs Corey Johnson and Vanessa Gibson for the opportunity to testify today about forensic science practices in the NYPD Crime Lab and the Office of the Chief Medical Examiner.

Brooklyn Defender Services joins with the comments presented today by our colleagues at the Legal Aid Society, Bronx Defenders, and the Innocence Project. They all raise crucial points about the importance of accuracy and reliability in forensic testing in criminal cases. They also offer diverse suggestions about how to improve forensic oversight in our city. We urge the Council to consider all of their recommendations. I will focus my comments today on the importance of transparency in lab protocols and early disclosure of forensic evidence to defense teams and will provide specific recommendations for reform.

Recommendations

  1. The City should require the NYPD to list all of their laboratory protocols on the internet to be available to the public, as they required the OCME to do in 2013.

There has been a move towards more transparency in crime lab protocols in response to widespread scandals that have led to thousands of convictions being overturned across the country.[1] To be considered reliable, scientific study must be replicable. Scientists must be able to show how they arrived at their conclusions and those conclusions should be able to be replicated by others. Crime labs across the country have thus begun to post their protocols, validation studies, technical manuals and directives on their website. In 2013, the City Council passed legislation requiring OCME to post this information, which is now publicly available on their website.[2] Two examples from other states include the Indiana State Police Laboratory Division[3] and the North Carolina State Crime Lab.[4]

Unlike other jurisdictions, New York City’s police crime lab does not post their laboratory protocols on their website. Notably, the NYPD crime lab does not even have a page on the NYPD website that the public can access to learn about the lab, much less access critical protocols, test methods, quality assurance manuals and other relevant information. This information is critical to the analysis and assessment of all forensic testing that will be used in criminal cases.

At a minimum, the Council should require the NYPD crime lab to maintain a website and post on the websites all of the critical information required of OCME. Local Law 86-2013 should serve as the Committee’s model in drafting transparency legislation to apply to the NYPD crime lab.

  1. The City should require the NYPD and OCME to turn over all of the evidence that relates to testing in a criminal case early and automatically to defendants and their attorneys.

The Need for Discovery Reform in New York State

In order for people charged with crimes to present a full and fair defense in their case, they need complete and quick disclosure of all of the evidence. This is particularly so in cases involving forensic evidence which “often [has] decisive power in the judicial system.”[5]

Defense attorneys play a crucial role in holding police, forensic experts and prosecutors accountable and exposing systemic injustice. Yet we cannot fulfill our responsibilities in this role as a check on other court actors if we do not have access to the evidence.

Unlike most of the rest of the country, New York’s criminal procedure laws do not require early disclosure of the case evidence to the defense.  This lack of information is unfair and results in wrongful convictions.[6]  It also has a pernicious effect on the process of plea bargaining.  Without any information on the case, it is hard for people accused of crimes to trust their attorney during plea negotiations.  It is hard for the defense attorney to assess the advisability of a plea offer without the police reports.  Without the information defense attorneys need in order to defend our clients’ innocence or negotiate the plea bargain we believe is fair and appropriate, we are unable to move the process forward.  Instead the case ends up in a standstill for months.

This means that even forensic evidence, often the key evidence in the prosecution’s case, may be withheld from the defendant for months. In our experience, while it is now routine in Brooklyn for final reports or analyses to be turned over, we still may have to litigate, obtain subpoenas or at least engage in a prolonged back and forth, to obtain other critical forensic evidence in the case.

The City Council can help to ensure that people accused of crimes in New York City have all of the evidence they need to defend themselves, especially in cases involving forensic evidence. The Council should join with defenders and grassroots groups to call upon the State legislature and the Governor to pass comprehensive discovery reform in all criminal cases during the 2018 legislative session. Current discovery practices harm court-involved City residents and their families and are costly to taxpayers who must cover the costs of extended and unnecessary incarceration on Rikers due to discovery delays. The Council’s leadership on this issue could go a long way in bringing about statewide reform.

Particular Areas of Concern

OCME – Electronic Raw Data

A defendant cannot effectively challenge DNA evidence without access to the electronic raw data because the data is subject to interpretation by both the software program which processes it and the analyst who constructs the DNA profile. Yet in our experience, OCME will only turn over this information in response to a court-ordered subpoena. Judges respond inconsistently to defense requests for a subpoena, leading to variability across judges and jurisdictions.

Justice demands that where DNA is at issue in the case, the defendant and his or her expert should have early and automatic access not only to the electronic raw data, but all of the underlying data related to the DNA in his or her case, including a complete record of all bench notes.

New York City, like the rest of the state, falls far behind the rest of this country in with respect to prompt and thorough disclosure of this critical evidence, and it is time for reform. The City Council should require the OCME to provide this information to the District Attorney prosecuting the cases along with the analysis and all of the other necessary evidence early and automatically in the case.

OCME – Results of Employee Proficiency Exams and Disciplinary Records

As the City well knows, a single analyst can do significant harm to the reputation of a crime lab if they engage in illegal, improper, incompetent or simply careless behavior.[7] It is critical that defense counsel have access to the results of employee proficiency exams and disciplinary records to ensure that there is neither a rogue employee nor a pattern and practice of oversight that may lead to inaccurate results.  The OCME Department of Forensic Biology does publish on its website the department wide results of proficiency exams.  However, defendants and their lawyers know nothing as to whether the proficiency exams are sufficiently challenging and whether the samples used reflect the complex mixtures seen in real world casework.  A 2013 audit of the OCME Department of Forensic Biology by the New York State Office of the Inspector General disclosed that there exists a multi-level employee disciplinary scheme to deal with OCME criminalist malfeasance but the defense community knows little of the process and does not receive any documentation regarding prior mistakes made by the criminalist.[8]  The City Council should require the OCME to provide this information to both District Attorneys and to the defense.

NYPD Crime Lab – Testing of Controlled Substances in Misdemeanor Cases

Lab testing of controlled substances in misdemeanor cases is of particular concern because of a Court of Appeals case that, in effect, leaves innocent people incarcerated at Rikers for months without the testing of the evidence in their cases.  Criminal Procedure Law Section 170.70 mandates that an incarcerated defendant be held in jail no more than five days absent the converting of the misdemeanor complaint to an information. Prior to the decision in People v. Kalin, the prosecutor, in order to convert, was required to obtain a laboratory report demonstrating that the item recovered was, in fact, a controlled substance.  However, under Kalin, prosecutors can satisfy both the conversion requirement and, consequently, their obligation under CPL 170.70, with an assertion by the recovering police officer that based upon their training and experience and familiarity with packaging they believe the item to be the particular controlled substance.[9]  The testing by the police lab is then often pushed off months down the road, perhaps until right before trial.  And upon testing, if it determined that the item is, in fact, not a controlled substance, the defendant charged with a misdemeanor can have spent a considerable amount of time incarcerated for something that was not a crime. The irony is that our clients charged with felony possession or sale of a controlled substance are actually provided with more protections against wrongful imprisonment. Kalin does not abrogate the prosecutor’s obligation, pursuant to Criminal Procedure Law Section 180.80, to present a laboratory report to a grand jury within six days of the moment of an incarcerated defendant’s arrest. Therefore, in felony cases where the defendant is incarcerated and where the prosecutor must obtain an indictment within six days, we see cases dismissed when the laboratory report comes back as no controlled substance. These safeguards do not exist for our misdemeanor clients.  We have seen clients sit on Rikers Island for some period of time, or who have to return to court multiple times with a charge hanging over their head, who are later proven innocent of misdemeanor drug possession once the recovered item is tested. More commonly, even if a person asserts their innocence, they take a plea to get off Rikers before the lab report even comes back. This is unconscionable, but by requiring the crime lab to test evidence quickly and turn over the evidence to the defense, we could avoid unnecessary incarceration and court proceedings.

  1. The City should act to make the city’s crime lab independent of the NYPD to avoid bias

For decades, scholars have written of the “‘inbred bias of crime laboratories affiliated with law enforcement agencies’ – as have courts, legislators, prosecutors, investigators, and reporters.”[10] 2009 represented a sea change. In that year, the National Academy of Sciences’ Report, Strengthening Forensic Science in the United States: A Path Forward, challenged the law enforcement paradigm for forensic laboratories, recommending that forensic service providers be administratively or financially independent of law enforcement-based parent agencies.[11]

Since then (and in reaction to ongoing scandals involving crime lab errors or misconduct), both Washington D.C. and Houston have created independent forensic agencies. Two other states, Virginia and Rhode Island, already had independent forensic labs.[12]

New York City should join with these other jurisdictions and make the city’s crime lab independent of the NYPD. This would instill public trust in the crime lab, limit the role of motivational and cognitive bias in testing, and put New York at the forefront of reform. We need not wait for another scandal to serve as the impetus for reform: the Council should act now to make our crime lab independent of the NYPD.

Questions?

If you have any questions, please feel free to reach out to Guy Raimondi, Supervising Attorney, graimondi@bds.org, & Andrea Nieves, BDS Policy Team, 718-254-0700 ext. 387 or anieves@bds.org.

[1] “Scandals have plagued state crime labs in North CarolinaCaliforniaVirginiaIllinoisMarylandWest Virginia and Mississippi; the city crime labs in HoustonClevelandChicagoOmahaOklahoma CityWashington and San Francisco; the county lab in Nassau County, New York; and even at the FBI and Army crime labs.” Radley Balko, Private Crime Labs Could Prevent Errors, Analyst Bias: Report, Huffington Post, June 14, 2011, available at https://www.huffingtonpost.com/2011/06/14/the-case-for-private-crime-labs_n_876963.html.

[2] New York City Office of the Chief Medical Examiner website, available at http://www1.nyc.gov/site/ocme/services/technical-manuals.page (last viewed Dec. 13, 2017).

[3] Indiana State Police Laboratory Division website, available at https://www.in.gov/isp/labs/index.htm (last viewed Dec. 13, 2017).

[4] North Carolina Department of Justice – State Crime Lab website, available at http://www.ncdoj.gov/About-DOJ/Crime-Lab/ISO-Procedures.aspx (last viewed Dec. 13, 2017).

[5] Itiel D. Dror, Cognitive neuroscience in forensic science: Understanding and utilizing the human element, 370 Philos. Trans. R. Soc. London B. Biol. Sci. 1674 (2015).

[6] See, e.g., Brandon L. Garrett, Actual Innocence and Wrongful Convictions, in Reforming Criminal Justice, Vol 3: Pretrial and Trial Processes, pp. 193-210, available at http://academyforjustice.org/wp-content/uploads/2017/10/9_Reforming-Criminal-Justice_Vol_3_Actual-Innocence-and-Wrongful-Convictions.pdf.

[7] See, e.g., Joseph Goldstein, New York examines over 800 rape cases for possible mishandling of evidence, N.Y. Times, Jan. 10, 2013, available at http://www.nytimes.com/2013/01/11/nyregion/new-york-reviewing-over-800-rape-cases-for-possible-mishandling-of-dna-evidence.html.

[8] State of New York, Office of the Inspector General, Investigation into the New York City Office of Chief Medical Examiner: Department of Forensic Biology (Dec. 2013), available at https://www.ig.ny.gov/sites/default/files/pdfs/OCMEFinalReport.pdf.

[9] People v. Kalin, 2009 NY Slip Op 2446 (N.Y. 2009).

[10] Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias (2010), Case Western School of Law Faculty Publications, Paper 603, available at https://learn.saylor.org/pluginfile.php/33515/mod_resource/content/3/BUS403-2.6.3-IndependentCrimeLaboratoriesTheProblemofMotivationalandCognitiveBias-pdf..pdf.

[11] National Research Council of the National Academies, Strengthening Forensic Science In The United States: A Path Forward (2009).

[12] Max M. Houck, What does independence mean for a forensic laboratory?, Evidence Technology Magazine, available at http://www.evidencemagazine.com/index.php?option=com_content&task=view&id=1385.

BDS TESTIFIES BEFORE NYC COUNCIL OVERSIGHT HEARING ON PROGRESS IN CLOSING RIKERS

TESTIMONY OF:

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Written with Jared Chausow, Senior Policy Specialist

Presented before

The New York City Council Committee on Fire and Criminal Justice Services

Oversight Hearing on Progress in Closing Rikers Island

December 4, 2017

My name is Kelsey DeAvila; I am the Jail Services Social Worker at Brooklyn Defender Services. I would like to thank the Committee on Fire and Criminal Justice Services for convening this hearing on progress in closing the jails on Rikers Island. BDS provides comprehensive public defense services to more than 30,000 people each year, thousands of whom are incarcerated in the city jail system either while fighting their cases or upon conviction of a Misdemeanor and sentenced to a year or less. BDS’ Jail Services Division provides supportive services and direct advocacy on behalf of our incarcerated clients. This testimony draws on the experiences of our clients and staff in the jails, as well as those of BDS’ Executive Director, Lisa Schreibersdorf, who is serving on the Implementation Task Force’s Working Group on Design.




In its nearly nine decades as a de facto penal colony, Rikers Island has been the site of countless atrocities. The staff brutality and abuse that are endemic to Rikers, with its infamous “deep-seated culture of violence,” have taken or otherwise destroyed the lives of many New Yorkers. Medical and security staff neglect, for which the City has been forced to pay out massive sums in legal settlements, has likewise resulted in substantial sickness, injury, and death. Family members and other loved ones have forgone much-needed income, endured hours-long journeys, and even suffered sexual abuse and humiliation by security staff to visit people inside. The design of the facilities has blocked people—particularly those with mobility impairments or other disabilities—from accessing urgent medical treatment, education, and other programming, and allows for beatings and other violence to occur without witnesses. In keeping with the Island’s namesake, Richard Riker, who as a judge in the 19th Century was known for turning free Black people over to slave catchers, 88% of the total jail population are people of color.[1],[2] The net effect of the trauma and hardship of pre-trial detention on Rikers is a gross distortion of justice, as its distance from courts presents challenges for robust attorney-client relationships, and its daily violence, deprivations, and humiliations coerce even innocent defendants to plead guilty just to go home. Finally, Rikers Island has served to hide many of the greatest shames of our criminal legal system, isolated as it is farther from the heart of New York than its geographical distance and all but invisible to those who are not directly impacted. Its closure cannot come too soon.

Envisioning a More Just New York City

Closing Rikers presents our City with a tremendous opportunity to fundamentally transform its punishment paradigm. The current model for pre-trial detention, which is undoubtedly punitive even though it purports to mostly serve as a mere tool to ensure defendants return to court, creates and perpetuates violence. It very likely has a criminogenic effect in the communities most impacted by mass incarceration and criminalization.[3] Better models facilitate healing and create meaningful accountability for those who have done wrong while allowing those who are presumed innocent to remain at liberty. In addition to doing its part to end most pre-trial detention, the City must:

  1. Ensure that all borough-based jails are small, accelerate reductions in jail populations, and invest the operating cost savings to meet community needs.
  1. End the culture of violence and staff impunity in all City jails.
  1. Redesign borough-based facilities to promote socialization, education, and individual and collective health and well-being, including by abolishing solitary confinement.
  1. Preserve family and community bonds by encouraging contact visits.
  1. Reimagine any remaining pre-trial detention to make it as non-punitive and non-coercive as possible, and help to ensure that defendants have all necessary resources to participate in their own defense. This includes denying prosecutors access to recorded phone calls unless they have a judicial warrant and providing confidential meeting space for participatory defense meetings.
  1. End all revenue generation from incarcerated people.

The Paramount Goal of Decarceration & How to Achieve It

As I have testified to this committee before, in any conversation about our jails, it is crucial to first acknowledge the vast number of people on Rikers Island who simply should not be incarcerated in the first place. For example, many thousands of New Yorkers are needlessly detained each year because they are unable to immediately pay bail, resulting in short jail stays with devastating consequences. Individuals are separated from families and communities; risk loss of employment, benefits and housing; suffer interruptions in medical care; and endure chaotic and often violent stays in custody. Thousands more are detained for longer stretches because bail is set, either intentionally or neglectfully, in an amount and form their families could never afford. Broken Windows policing and the widely-discredited Drug War needlessly sweep masses of people into the criminal legal system; of the 268,775 arrests in New York in 2016, more than 122,000 stemmed from allegations relating to fare evasion, drugs, petit larceny (often baby food, laundry detergent and other essentials), trespass (often related to shelter-seeking), graffiti, or sex work. Taken together, felony drug sale and felony drug possession constitute the most common top arrest charges (1481) among the average daily population in City jails, despite ample evidence of the failure of drug prohibition.[4] Meanwhile, high turnover in the jail population puts a strain on staff, housing and healthcare resources in the jails. In addition to mitigating harm to individuals, ending unnecessary arrests and discriminatory bail practices, adopting sentencing and discovery reform, and establishing a robust system for diverting people in need of treatment will contribute to reducing violence in the jails and easing other management challenges.

All parties in the criminal legal system, and a growing number of policymakers, readily acknowledge that many people are in jail for essentially political reasons. In the relatively rare event of a high-profile crime involving somebody with past criminal court involvement, some media outlets unfairly assign blame to a judge or prosecutor who, perhaps, could have had the individual responsible locked up, or locked up for longer. This is a patently absurd perspective on the use of our jails for incapacitation. More than a third (34.1%) of all people in City jails are detained for four or fewer days; more than three-quarters (76.2%) are discharged to the community without ever being sent to prison.[5] Their time away likely only exacerbates any underlying behavioral issues. Our City and court actors should be at the vanguard of implementing humane and effective systems to address the root causes of any problematic behaviors that result in true threats to public safety, not running from negative media attention.

Decarceration while investing in healthy and empowered communities must remain the primary goal as we close Rikers and build our future.

The Culture of Violence in City Jails and the Lack of Accountability for Staff Misconduct

The fourth and most recent report from the Nunez Independent Monitor, filed October 10, 2017, details the same disturbing behavior routinely reported by our clients: Officers who “relish confrontation,” stoke conflict between incarcerated people, and resort to violence as a first response.[6] Despite the Department’s efforts to train staff in de-escalation techniques, staff reportedly utilize a one-size-fits-all approach to force, unleashing violence far out of proportion to what is necessary to contain a situation. Incidents of real or perceived non-compliance which are minor or already under control result in individuals being thrown to the ground or worse. For example, Ronald Spear, a 52 year-old medically frail man with a ‘fall risk’ bracelet, was killed by Correction Officer Brian Coll after one such dispute. Officer Coll kicked him in the head while other officers held him facedown on the floor. Defending himself against charges of orchestrating a cover-up of the killing, Officer Coll’s attorneys argued the cover-up was “instead a function of the culture firmly in place at Rikers Island.” BDS does not believe that culture absolves Officer Coll, and neither did the court that recently convicted him, but we do recognize it as an indictment of DOC.[7]

We emphasize that efforts to improve accountability should give special attention to supervisory staff in city jails. Supervisors play a fundamental role not only in dispensing official discipline, but also in setting the tone and atmosphere in the facilities they oversee. Unfortunately, the historical inadequacy or complete absence of accountability for misconduct in city jails have led many people with disturbing records of abuse into leadership roles. Captains and Deputy Wardens too often exhibit a troublesome lack of professionalism, do not meaningfully reprimand staff when appropriate, and in the worst cases, are themselves involved in meting out or covering up horrific brutality. The New York Times reported last week on one such case in 2016. A Captain was alleged to have punched a handcuffed teenager in the face, breaking his teeth as the young man pleaded with him to calm down, and then colluded with his subordinates to cover up the incident.[8] Captain Arkhurst led an elite Emergency Response unit—a position which should demand a particularly high degree of restraint and professionalism given their charge to respond more effectively than line officers to volatile situations. Such incidents lay bare how a culture of impunity and violence is allowed to fester and endure.

At the facility level, supervisors routinely ignore evidence of collusion and decline to interview victims or witnesses of uses of force, opting instead to rubber-stamp the statements of officers they are tasked to oversee. Inquiries by the Department’s Investigation Division either fail to uncover staff misconduct or serve to justify it, rather than enforce accountability. As noted by the Nunez Monitor, 92% of such investigations between January and June 2017 found no staff wrong-doing, despite clear objective evidence of much higher rates of unjustified force. In the rare cases that investigations find staff misconduct, discipline is delayed and largely ineffectual, except in rare cases after certain high-profile incidents.

Beyond the most serious cases of brutality, stemming the tide of violence in city jails requires ending the myriad humiliations people in city jails endure on a daily basis. These structural and interpersonal cruelties contribute to an environment rife with tension.  For example, most young people are limited to visits devoid of meaningful physical contact—separated by a wide table and plexiglass barrier. Ostensibly a security measure, the enforced separation of young people from their mothers’ loving touch breeds deep resentment. To make matters worse, conversations during visits are often dominated by the humiliating ordeal visitors endure to get through “security procedures” prior to seeing their loved ones.

Other everyday cruelties include officers tightening handcuffs to the point that hands lose their feeling, then twisting the wrists to cause shooting pain while uttering threats of further violence. At GMDC, young people describe an area in intake known as the “forget about me cells” where people are left and ignored for hours without food or water as a form of retaliation, punishment, or simple negligence. In solitary confinement and similar high-security units, people rely on officers for their most basic needs. When officers deprive people of toilet paper, food, showers, outdoor recreation and other necessities, people become desperate, and in their desperation may act out—thereby deepening the cycle of violence and isolation.  People join gangs for survival and access to basic amenities. The list of daily humiliations is endless.

Jails with smaller populations that are better integrated into the community and more accessible to visitors and service providers would be better positioned to meaningfully reduce violence and improve staff accountability, but this change alone will not solve the problem. As a first step, it is paramount to address the ways staff practices fuel the broader culture of violence in city jails.  So long as humiliation remains a celebrated tactic and gangs are manipulated to control or intimidate, violence will likely remain unabated in New York City jails.

DOC must ensure that staff who engage in substantiated uses of excessive force no longer work for the agency. Future reforms must emphasize a baseline of professionalism from supervisors who set the tone in the units they oversee. Swift, fair and meaningful accountability must be demanded from and dispensed by supervisors in the face of brutality, neglect, or simple unprofessionalism. Those who contribute to or ignore subtle and overt abuse by their subordinates should be promptly reassigned. Likewise, there needs to be a systemic response to staff neglect; it cannot be accepted as simply normal that our clients’ acute health care needs are ignored. Human custody is a profound responsibility and staff accountability systems should reflect that.

Fostering Greater Socialization, Promoting Education, and Abolishing Solitary Confinement

Closing Rikers, transforming the punishment paradigm, and creating a more just New York City must include abolishing solitary confinement.

Solitary confinement is at the core of mass incarceration in the United States – and, in particular, New York. It is the center of the onion of our inhumane and ineffective punishment system. In a letter of support for the HALT Solitary Confinement Act, Dr. Bandy X. Lee, Assistant Clinical Professor of Psychiatry at Yale and an internationally-recognized expert on correctional psychology and the prevention of violence, wrote: “It has now become evident that the opposite of solitary confinement—that is proper socialization, interaction, and training—is what brings about the result we all desire.”

In the wake of the attention to Kalief Browder’s tragic death, the New York City Board of Correction (BOC) heeded the call of grassroots activists, attorneys for incarcerated people, and mental health professionals, and implemented new minimum standards to dramatically curtail the use of existing solitary confinement units in City jails and prohibit it altogether for young people. However, these regulations explicitly allowed DOC to create new units for the indefinite isolation of the very people BOC sought to protect. BOC’s new standards failed to bring about the fundamental transformation of the punishment paradigm that is necessary to make our jails more humane, and should serve as a lesson about the paramount importance of getting it right. In the redesign of the borough-based jails, all forms of solitary confinement should be abolished.

Opposition to Solitary Confinement – From the 19th Century to Today

Opposition to solitary confinement has grown in recent years to include President Obama, Pope Francis, and the United Nations General Assembly.[9],[10],[11] U.S. Supreme Court Justice Anthony Kennedy invited a constitutional challenge to its widespread practice.[12] That said, scientific and legal understandings of the harm of solitary confinement are not new. In fact, judicial recognition that solitary confinement is inhumane and ineffective dates back at least to 1890, when the US Supreme Court found in In Re Medley that placement in solitary confinement caused extreme and long-term harm, writing that a “considerable number of the [people in solitary] fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”[13]

Racial Bias in Prison and Jail Discipline

Solitary confinement practices in New York reflect the systemic and interpersonal racism of our prisons and jails. The New York Times conducted an investigation last year and found Black people to be far more likely to be subject to solitary confinement in New York State prisons, which in turn exacerbates disparities in release determinations, as people in Special Housing Units (SHU) are far less likely to be granted parole.[14] Research by the New York City Department of Health and Mental Hygiene further found that Black and Latinx people incarcerated on Rikers Island or in the City’s borough-based jails were less likely than their white counterparts to receive appropriate mental health diagnoses and more likely to experience solitary confinement.[15] Solitary confinement should be abolished in light of these racial disparities. Moreover, future reforms must be cognizant not to recreate these discriminatory trends. All people with behavioral challenges, regardless of demographic factors, should be met with compassionate interventions that seek to address the root causes of behavior, and not subjected to overtly punitive sanctions.

Catastrophic Health Impacts of Solitary Confinement

In 1993, correctional psychiatry expert Dr. Stuart Grassian identified what has been called SHU Syndrome, which includes an array of symptoms. Physiological conditions brought on by solitary confinement include gastrointestinal and urinary issues, deterioration of eyesight, lethargy, chronic exhaustion, headaches and heart palpitations among others.[16] Solitary is further shown to cause psychological trauma including severe depression, anxiety, insomnia, confusion, emotional deterioration, and fear of impending emotional breakdown.[17] Studies have found that prolonged solitary confinement induces hallucinations and delusions, and bouts of irrational anger and diminished impulse control, leading to violent outbursts and invoking the very behavior it purports to manage.[18],[19]

A 2014 study revealed that people subjected to solitary confinement in New York City jails were 6.9 times more likely to engage in acts of self-harm than those who were not.[20] The suicide rate in New York State’s SHU is nearly six times higher than that of the General Population (GP).[21] These tragic statistics confirm what mental health experts have long concluded, namely that solitary is “inherently pathogenic; […] one of the most severe forms of punishment that can be inflicted on human beings short of killing them.”[22] In fact, one man who has been held in solitary confinement at New York’s Elmira prison for approximately thirty years, William Blake, described his long-term isolation as a “sentence worse than death.”

As New York State Assembly Health Committee Chair Richard Gottfried has said in a press release by the Campaign for Alternatives to Isolated Confinement, “Solitary confinement has catastrophic long-term effects on physical and mental health. No responsible medical professional could stand for this, and New York State shouldn’t either.”

Violations of United Nations Rules, Professional Association Standards, and New York State Law

The United Nations Standard Minimum Rules for the Treatment of Prisoners, the “Mandela Rules,” expressly prohibit prolonged solitary confinement beyond 15 days as a form of torture or cruel, inhuman or degrading treatment. Nevertheless, our City jails hold people in solitary confinement beyond that limit, in some cases for many months in the Enhanced Supervision Housing Unit (ESHU) or other such units. (ESHU allows for graduated relief from sanctions, ultimately allowing for more time out of cell than standard definitions of solitary, although lockdowns and other incidents often leave people isolated day and night.)

Contrary to clear direction from the National Commission on Correctional Health,[23] healthcare staff in prisons and jails are generally complicit in subjecting people to the harms of solitary confinement. Even when they are not, healthcare staff have indicated to me that they have no ability to overrule security staff decisions about solitary placements, rendering their expert opinion generally ineffectual. Once someone is placed in solitary confinement, the problems of access to health care are exacerbated. Officers have even more control over access to sick call and emergency referrals, and securing escorts from high security units to appointments is increasingly difficult.

A Way Forward – The HALT Solitary Confinement Act

BDS supports the efforts of New York State legislators and our grassroots partners in the Campaign for Alternatives to Isolated Confinement to enact the Humane Alternatives to Long Term (HALT) Solitary Confinement Act (S.4784-Parker/A.3080-Aubry) and bring an end to the torture of solitary confinement in New York State. The Corrections Commissioner in Colorado, Rick Raemisch, has already successfully implemented solitary reforms that mirror HALT.[24] These reforms include: A hard limit of 15 consecutive days in solitary confinement, with most serving far less; the use of therapy to address seriously problematic behavior; and a dramatic reduction in the overall use of solitary. In 2011, 1,500 people in Colorado prisons, or 7% of the prison population, were held in solitary; the state’s prison commissioner now reports that number has dropped to 18 people, or far less than 1%. These reforms mark a new era of compliance with the UN’s Nelson Mandela Rules for the Treatment of Prisoners. It is urgently necessary that New York City and State follow suit.

There are many examples of alternatives to solitary confinement, in addition to Colorado’s, that New York City should seek to emulate. After visiting Halden, a maximum-security prison in Oslo, Norway with the Prison Law Office, Leann Bertsch, the Director of North Dakota’s Department of Corrections and Rehabilitation, implemented a series of reforms in her own system that dramatically reduced the use of solitary confinement.[25] Right here in New York State, the Merle Cooper Program at Clinton C.F., a popular therapeutic, community-intensive, long-term counseling series proved to be remarkably effective at improving behavior and at creating a sense of accountability before it was shut down in 2013.[26]

In 2017 and beyond, it should be unthinkable that any new solitary confinement units would be created.

Preserving Family and Community Bonds by Encouraging Contact Visits

Research compiled by the VERA Institute shows that jail visitation preserves critical “pro-social supports” that improve behavior and, for young people, school performance.[27] VERA also found that “Incarcerated men and women who maintain contact with supportive family members are more likely to succeed after their release. For example, people in prison “who had more contact with their families and who reported positive relationships overall are less likely to be re-incarcerated. Families can motivate formerly incarcerated relatives to seek or continue drug treatment or mental health care, and they most frequently provide housing for newly released family members.”[28] Research conducted by the Minnesota Department of Corrections further found that “Visiting can help offenders build support networks they will need after release…[P]ositive interactions with friends and family can lower recidivism.”[29]

Our experience with clients in City jails affirms these findings. Beyond data and outcomes, visiting also provides immeasurable relief from the extreme stress of the jails. For our clients in solitary confinement, we are often the only people they see, other than occasional security staff, for days or weeks at a time. Others in General Population may get very few visits, even though they have family and friends who wish to support them. That should not be the case. However, the hardships of visiting at Rikers, in some cases coupled unnecessary and humiliating security restrictions, preclude many families and friends from being present during this difficult period. In fact, DOC has actively sought policies and implemented new practices to make visiting even more difficult.

The Department has repeatedly argued that visiting restrictions are necessary to improve the security of the facility. For example, at the City Council Oversight Hearing on Violence in City jails on October 25, 2017, when asked what tool the Department needed in order to curb violence, DOC’s Commissioner Cynthia Bran said DOC sought more authority and autonomy to restrict and limit visits. If the primary concern of the Department is reducing violence, the Department should be working to improve access for visitors, make family visits more child-friendly, and reform the arduous visiting procedures to which families are subjected. Making visits more difficult and limiting physical contact will discourage family members from visiting, causing further isolation and desperation among the incarcerated population, thereby fomenting further violence.

DOC has not presented a record to demonstrate that visitors are a significant source of contraband smuggling, but cited this purported concern when initiating its crackdown on visiting. To justify its request for a rule change to the BOC, the Department cited 29 individuals who were arrested with weapon contraband during the first 6 months of 2015. They also noted 24 weapons found in visiting rooms, although they do not define what constitutes a weapon. The Department stated that up to 1,500 people visit Rikers daily, though sadly that number has apparently declined by nearly a third in its most recent report.[30],[31] Starting with the Department’s data, if all the weapons referenced were smuggled in on one day – that would mean approximately 1,447 people (or 96%) had nothing to do with smuggling contraband.  To capture the full six-month period, the number of visits jumps to 270,000, meaning that 269,447 visits had nothing to do with contraband smuggling during that period.  It was absurd to adopt rule changes impacting hundreds of thousands of visits due to alleged smuggling by .0001% of visitors.. What’s worse, by making visiting a degrading and arduous endeavor, the reduction in the number and frequency of visitors means that the benefits of regular family visits are forgone, to the detriment of overall safety.

The Department of Investigation has found that a large majority of contraband is smuggled into the jails by uniformed and civilian staff and has since directed its enforcement efforts accordingly.  BOC has found that a majority of weapons in the jails are made from materials found in the jails and not from smuggled items—another reason to shut down these decrepit facilities.[32] Either way, there is no justification for harsh limits on visiting.

Plans for redesigned facilities should prioritize comfortable and welcoming visiting spaces and efficient visiting processes. Equally important, DOC policies and culture must respect the dignity and time of all visitors—indeed, the Department as a whole and jail staff on a personal level should be appreciative of the positive contributions visitors make.

Mitigating Pre-Trial Detention’s Distortion of Justice

The Bureau of Justice Assistance, a division of the U.S. Department of Justice, has found that “[t]hose who are taken into [pre-trial] custody are more likely to accept a plea and are less likely to have their charges dropped.”[33] Indeed, there is ample research documenting that finding, and our experience at BDS affirms it. It should be obvious that anybody who has experienced even a day in Rikers, and who faces the prospect of weeks, months or years inside, is far more likely to accept a plea that involves an admission of guilt than somebody who is free until their trial, regardless of whether or not they are in fact guilty. Prosecutors consistently exploit this leverage. This appalling practice helps to explain why many of the so-called “frequent fliers” in Rikers have long criminal histories, some with dozens of misdemeanors. They get caught up in the dragnet of aggressive policing, often based on illegal searches, and, because they cannot afford bail, get thrown in jail until they plead guilty in exchange for an offer of time served. One of our clients was in arraignment on charge of drug possession when the prosecuting Assistant District Attorney stated on the record that if our client were out, he would have been offered a plea bargain of time served. Since he was still incarcerated, the ADA said, the offer was a six months sentence.

In another recent case, deficient health care and other endemic problems in DOC staff culture, temporarily derailed our client’s defense and put his life in jeopardy. An older man whom I was visiting at Rikers last month collapsed right in front of me after suffering from acute medical neglect. He has been diagnosed with kidney disease and had been on dialysis in the community, receiving treatment three times every week. However, once at Rikers, the treatment stopped. He had put in a sick call request and when that was ignored, we sent three referrals to DOC, the Board of Correction, and Health and Hospitals. He needed to be hospitalized. Instead, he was taken to Bellevue for dialysis at most once a week, and often far less frequently, and then returned to his jail cell. I met with him and he told me he wasn’t feeling too well. Then he passed out and collapsed. I requested urgent medical care but the Correction Officer seemed unconcerned. When she ignored me, I called over additional officers, and they, too, shrugged it off, saying “he does this sometimes.” I retrieved my phone and called the on-island administrator for Health & Hospitals myself, explained the situation, and demanded help for my client. Correction Officers then deemed me a disturbance and told me to leave. I said I would not leave until my client received medical attention, but they escorted me out. When I later followed up with DOC, I was told that he is “fine and back in his housing unit.” We were able to verify that he was admitted to Elmhurst Hospital, but was returned to Rikers. DOC was then unable to produce him for his court appearance because his blood pressure was too high. Ensuring defendants appear in court is the only reason under New York State law that people may be detained pre-trial, but in this case, and others like it, his time in jail actually prevented his appearance and his ability to fight his case. I do not know what would have happened to this man if not for our advocacy, but quality care should not depend on us.

Pre-trial detention likely necessarily distorts justice, but the City could achieve worthwhile mitigations. The detention, itself—the separation from family, friends, work, and community—is punitive and there is no justification for further punishing people with systemic deprivation. Even a smaller, borough-based jail system must keep in mind the purpose of any limited detentions which do occur, namely to ensure court appearances. Rikers Island introduces myriad barriers to access to attorneys and courts which must not be recreated. Jails in distant corners of the boroughs will not alleviate the challenges attorneys, social workers and investigators face at present to meet with their clients. Similarly, distant jails requiring significant transportation are likely to be plagued with the same, often inexplicable issues that result in our clients not being produced for their court dates, thereby lengthening their incarceration. In any event, greater accountability and safety mechanisms in the realm of transportation are needed. We are troubled, for example, by recent repeated breakdowns of the elevators at Brooklyn House of Detention, which have caused some missed court appearances.

Moreover, any future system should address the many inefficiencies which currently limit attorney and court access. These include a lack of clarity and professionalism from jail staff toward attorneys who are unfamiliar with the complex and inconsistent regulations across jails, inadequate space to store personal belongings during visits, inadequate privacy and space in which to comfortably conduct visits, delays in having clients brought to the visiting room despite efforts to call ahead, among others.

In addition to visits, unfettered access to confidential telephone calls between clients and attorneys must be guaranteed. The present “PIN” system is plagued with limitations including but not limited to people being coerced to forfeit their phone credits, control of the phones by gangs with staff complicity, and having to choose between a call home and a call to one’s lawyer.

Lastly, in the interest of justice, DOC must also withhold all call recordings from District Attorneys’ offices unless prosecutors provide a judicial warrant. It is wrong that people in pre-trial detention, who are disproportionately low-income people of color, are subject to this additional, burdensome layer of surveillance that may prohibit them from communicating with loved ones or participating in their own defense. The City should instead promote ‘Participatory Defense,’ an innovative community organizing model for people facing charges, their families, and communities to empower themselves and improve case outcomes. This could be done with attractive and confidential visiting spaces with welcoming staff cultures, though I am admittedly skeptical that DOC will ever meet those criteria.

End All Revenue Generation from Incarcerated People

According to budget documents, DOC expects to collect approximately $20.5 million in annual revenue from jail commissary operations, vending machines and surcharges on incarcerated people’s telephone calls in 2018. This is unacceptable. The City should not derive funds from people whose liberty and ability to earn an income has been taken away, especially as nearly 80% of those in our jails are presumed innocent.

Exorbitant call rates in jail punish whole families and exacerbate inequality. Under President Obama, the Federal Communications Commission had drafted regulations to end price gouging for such calls, but under President Trump, this proposal was withdrawn. Under the existing contract with Securus Technologies, the city receives a $5 million kickback every year. New York City should provide calls free of charge to incarcerated people and their loved ones, in line with Intro. 1634 (Johnson). This would help facilitate ongoing community bonds through the difficult period of incarceration. Additional revenue generated by markups on commissary items, as well as fees charged by J Pay and Western Union, as well as steep fines for minor infractions of jail rules should be prohibited, as well.

More Reasons to Close Rikers Soon: BDS Client Stories

There are no more important reasons to close Rikers as soon as possible than the shocking experiences of our clients.

Mr. F was a young man who suffering from paranoid schizophrenia. While incarcerated, Mr. F decompensated and began experiencing confrontations with custody staff, many of whom, lacking adequate training to de-escalate incidents involving individuals in his mental state, approached Mr. F aggressively. Mr. F received infractions during his incarceration and spent several months in the solitary unit for people with mental illness at the George R. Vierno Center (GVRC) on Rikers Island. This isolation caused Mr. F to decompensate further, losing the few privileges he came to earn in the unit and lengthening his stay in solitary. Eventually, Mr. F’s condition worsened and he was transferred into another isolation unit, which housed people with mental illness deemed violent—12 Main at GRVC. In this unit, Mr. F was isolated further and experienced worsening depression, anxiety, anger, lethargy, loss of appetite, frustration, hopelessness, insomnia, physical pain, and hallucinations associated with his schizophrenia. He reported to our staff a feeling of being trapped. In no small part due to his prolonged isolation, Mr. F decompensated so profoundly that he was eventually found unfit to proceed in his criminal case and had to be hospitalized in order for him to advance his case. This case begs the question, what is the purpose of pre-trial detention if not to ensure people make it to court? 12 Main was depopulated a few years ago after people isolated there smeared feces on the doors and walls of their cells and others lit cell fires.

In one recent case, Mr. C had two stents around his kidneys which were due to be removed after only two weeks. His arrest delayed the necessary operation and healthcare staff in the jail ordered an assessment before moving forward. Despite significant advocacy from our office, approximately five months went by without a response, and the specialty appointment to remove the stents had not been ordered. Eventually, the client developed an infection which had to be treated, further delaying the operation to remove the stents. Meanwhile, our client suffered a great deal of pain and when urinating, he became lightheaded. Over time, his appearance declined; his skin became pale, and he was eventually transferred to a hospital where he finally received treatment.

In another recent case, Mr. R had a diagnosed seizure disorder, which was not appropriately managed with medications. Despite written notification from medical staff outlining the specific medical dangers should he be placed alone in a cell, he spent numerous months in solitary confinement, over the repeated objections of healthcare staff. His isolation only exacerbated his medical condition, resulting in weekly seizures, one of which led to a broken tooth and shoulder injury. Our office advocated for his immediate transfer to a hospital or an open dorm. He was sent to Bellevue Hospital for a week of tests, but was ultimately sent back to Rikers to finish his time in solitary confinement.

Ms. R’s story is a perfect example of how Rikers current policy on feminine hygiene products affects poor New Yorkers. Ms. R, a 24-year-old BDS client, spent nine months detained on Rikers. She asked her BDS social worker not to visit her while she was on her period because she was worried about leaking through her uniform and having to walk the halls of the jail with a bloodstain. Ms. R had to choose between the shame of leaking blood while on her period and meeting with her legal team. Ms. R comes from a low-income family and worked overtime in the jail to pay for her basic needs including deodorant, soap and sanitary napkins. She shared that she did not have enough sanitary napkins and she would try to wear the same napkin for as long as possible to ration the supply she was able to purchase from the Commissary because the free pads were of such low quality.

An officer flew into a rage during a verbal disagreement with our young client, J. Despite there being no physical threat to the officer or others, she took out her MK9 pepper spray. When our client fled, the officer unleashed the pepper spray as she chased him through the mess hall, dousing everyone else in the area. The excessive pepper spray triggered a severe asthma attack which left our client coughing up blood. He was taken to intake where he waited several hours before receiving medical care. The incident likely sent many bystanders to the clinic as well.

K, who was held at Rikers at age 19, reported being sexually assaulted by a male from his housing unit to 311 and DOC officers. He also filed an incident report. Investigators failed to take action and the sexual assaults continued for about a month before he told his BDS social worker. We immediately intervened, but by then he had become so desperate that he spat in an officer’s face so that he would be immediately moved to another unit.

An officer engaged our client, Mr. L, in a verbal argument, ultimately threatening to place him in a unit housing rival gang members. Making good on this threat, our client was later moved to a cell in the jail’s intake where he encountered approximately seven members of a rival gang. As planned, he was attacked and suffered two deep cuts on his face, requiring several stitches.

After filing unrelated complaints against correctional staff, Mr. N was repeatedly denied sick call as well as escorts to the clinic, and was documented as having “refused” care. As a result of being denied timely medical treatment for a cut, the client developed gangrene which nearly required amputation.

Mr. R was detained while facing serious charges and worried that other incarcerated people would hurt him. He asked to be placed in protective custody, but DOC did not honor the request. As he feared, he was assaulted and his jaw was broken. Still, he was not protected. Four months later, he was stabbed several times.

Mr. C has a seizure disorder and diabetes and was suffering from withdrawal when he was arrested. His attorney at BDS bought him a candy bar before his arraignment due to a concern about reduced insulin levels. At the prosecutor’s urging, the judge set bail beyond what Mr. C could afford, and he was taken into custody. We requested medical attention for him and followed up with DOC. Five days later, when he appeared in court again to testify, he was visibly much sicker and told his attorney he thought he would die. He said that he had been sleeping on the floor and only just got a bed. He had been using other incarcerated people’s insulin, and was truly afraid for his life. Fortunately, we were able to get him released.

We must now secure the release of every other person from Rikers Island as quickly as possible.

Thank you for your time and consideration of our comments. If you have any questions, please contact Jared Chausow, our Senior Policy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Anna Mae Duane, The Shame of Rikers, Slate, July 13, 2017 at  http://www.slate.com/articles/news_and_politics/history/2017/07/rikers_island_is_the_northern_equivalent_of_confederate_monuments_but_worse.html.

[2] Indep. Comm’n on New York City Criminal Justice & Incarceration Reform, A More Just New York City (2017), https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/58e0d7c08419c29a7b1f2da8/1491130312339/Independent+Commission+Final+Report.pdf.

[3] Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention (Univ. of Pa. Law School 2016), https://www.law.upenn.edu/live/files/5693-harriscountybail.

[4] NYC Dep’t of Corr., NYC Department of Correction at a Glance (2017), https://www1.nyc.gov/assets/doc/downloads/pdf/DOC_At_a_Glance-9-14-17.pdf.

[5] ibid.

[6] Steve J. Martin, et. al., Fourth Report of the Nunez Independent Monitor (2017).

[7] Benjamin Weiser, Ex-Rikers Guard Is Sentenced to 30 Years in Fatal Beating of Inmate, N.Y. Times, September 13, 2017 at https://www.nytimes.com/2017/09/13/nyregion/rikers-brian-coll-ronald-spear-sentencing-brutality.html?_r=0

[8] James C. McKinley, Jr., Correction Captain Charged With Beating Teenage Rikers Inmate, N.Y. Times, November 30, 2017 at https://www.nytimes.com/2017/11/30/nyregion/rikers-island-arrest.html

[9] Barak Obama, Why We Must Rethink Solitary Confinement, Wash. Post, Jan. 25, 2016, available at https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html?utm_term=.b442ca5915e7.

[10] Jean Casella, Why We Must Rethink Solitary Confinement – Pope Francis Denounces Solitary Confinement, Calls for Prison Conditions that “Respect Human Dignity”, Solitary Watch, Jan. 25, 2016, available at http://solitarywatch.com/2014/10/26/pope-francis-denounces-solitary-confinement-calls-for-prison-conditions-that-respect-human-dignity/.

[11] The United Nations General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (The United Nations 2015) [hereinafter The Nelson Mandela Rules].

[12] Davis v. Ayala, 576 U.S. ___ (2015), available at https://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf.

[13] In re Medley, 134 U.S. 160, 168 (1890).

[14] Michael Schwirtz, Michael Winerip, & Robert Gebeloff, The Scourge of Racial Bias in New York State’s Prisons, N.Y. Times, Dec. 3, 2016, available at https://www.nytimes.com/2016/12/03/nyregion/new-york-state-prisons-inmates-racial-bias.html?_r=0.

[15] Fatos Kaba et al., Disparities in Mental Health Referral and Diagnosis in the New York City Jail Mental Health Service, 105 Am. J. Pub. Health 1911-1916 (2015) available at http://ajph.aphapublications.org/doi/full/10.2105/AJPH.2015.302699.

[16] Sharon Shalev, A sourcebook on solitary confinement (London: Manheim Centre for Criminology, London School of Economics, 2008), p. 15.

[17] Craig Haney, Mental health issues in long-term solitary and “Supermax” confinement, 49 Crime & Delinquency133-136 (2003).

[18] Id.; see also Stuart Grassian, Psychopathological effects of solitary confinement, 140Am. J. Psychiatry 1452 (1983).

[19] Haney, 2003, p. 133; Grassian, 1983 p. 1453; James Gilligan & Bandy Lee, Report to the New York City Board of Correction, p. 6, Available at http://solitarywatch.com/wp-content/uploads/2013/11/Gilligan-Report.-Final.pdf. .

[20] Fatos Kaba et al., Solitary confinement and risk of self-harm among jail inmates, 104Am. J. Public Health 445.

[21] Statistics provided by NYS Department of Correction and Community Supervision.

[22] Gilligan & Lee, Report to the New York City Board of Correction, p. 6.

[23] See United States National Commission on Correctional Health Care (2016), Position Statement: Solitary Confinement (Isolation), [online] (available at: http://www.ncchc.org/solitary-confinement [accessed 25 October 2017]).

[24] Rick Raemisch,  Why we ended long term solitary confinement in Colorado, N.Y. Times, Oct. 12, 2017, available at https://www.nytimes.com/2017/10/12/opinion/solitary-confinement-colorado-prison.html.

[25] Dashka Slater, North Dakota’s Norway Experiment, Mother Jones, at http://www.motherjones.com/crime-justice/2017/07/north-dakota-norway-prisons-experiment/.

[26] Felicia Krieg, Prison Program to Be Eliminated, The Press-Republican, June 23, 2013.

[27] Sandra Villalobos Agudelo, The Impact of Family Visitation on Incarcerated Youth’s Behavior and School Performance (2013) at http://archive.vera.org/sites/default/files/resources/downloads/impact-of-family-visitation-on-incarcerated-youth-brief.pdf

[28] Ryan Shanahan and Sandra Villalobos Agudelo, The Family and Recidivism (2012) at http://archive.vera.org/files/the-family-and-recidivism.pdf

[29] Minnesota Dep’t of Corr. visiting information website at https://mn.gov/doc/family-visitor/visiting-information/

[30] NYC Dep’t. of Corr. visiting information website at http://www.nyc.gov/html/doc/html/visit-an-inmate/visit-schedule.shtml

[31] NYC Dep’t of Corr., NYC Department of Correction at a Glance (2017), https://www1.nyc.gov/assets/doc/downloads/pdf/DOC_At_a_Glance-9-14-17.pdf.

[32] New York City Department of Investigation, Commissioner Mark Peters, New York City Department of Investigation Report on Serurity Failures at City Department of Correction Facilities, November 2014.  Available at http://www.nyc.gov/html/doi/downloads/pdf/2014/Nov14/pr26rikers_110614.pdf

[33] Lindsey Devers, Ph.D. , Plea and Charge Bargaining (U.S. Bureau of Justice Assistance 2011).

BDS TESTIFIES IN FRONT OF THE NYC COUNCIL’S OVERSIGHT HEARING ON THE OFFICE OF THE INSPECTOR GENERAL FOR THE NYPD

Debora Silberman – Senior Trial Attorney

BROOKLYN DEFENDER SERVICES

Written with Jared Chausow, Senior Policy Specialist

Presented before

The New York City Council Committees on Public Safety and Oversight & Investigations

Oversight Hearing on the Office of the Inspector General for the NYPD

November 15, 2017

My name is Debora Silberman and I am a Senior Trial Attorney at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the Committees on Public Safety and Oversight and Investigations for holding this hearing on the Office of the Inspector General (OIG) for the New York Police Department (NYPD) and providing us with the opportunity to testify.

A number of recent high-profile corruption and misconduct scandals demonstrate continued systemic problems at the NYPD. Recent bribery allegations involving both senior leadership staff and the gun licensing division have rightly attracted a lot of media attention. Today, I will discuss additional issues that have not received as much attention, and warrant scrutiny by NYPD-OIG and the Council.

Racial Disparities in Law Enforcement

Sharp racial disparities persist in NYPD enforcement practices. Arguably the clearest evidence of this dynamic exists in marijuana possession arrest patterns. Contrary to past media reports, low-level marijuana arrests have not ended. In fact, though arrest rates have declined since their peak under Mayor Bloomberg and NYPD Commissioner Kelly, they remain dramatically higher than they were during Mayor Giuliani’s first term. Low-level marijuana possession remained the NYPD’s top drug arrest in 2016, and fourth most common arrest overall. From 2014 through 2016, 86% of the 60,990 of those charged with low-level marijuana possession across New York City were identified as Black and/or Latino, despite government surveys showing equal or greater marijuana use by white people. A report by the Drug Policy Alliance (DPA) found that the NYPD had arrested 362 people in West Harlem for this offense, yet only 14 in the Upper East Side, which has more than three and a half times as many residents. The report also found that people of color were far more likely to be arrested for this offense even in majority-white neighborhoods.[1] None of this is surprising to me. In my nearly seven years as a public defender, I have never represented a white person on a marijuana charge.

Importantly, 64% of U.S. residents, including a majority of Republicans, support full legalization of marijuana consumption – no arrests, no prosecution, no tickets or fines.[2] BDS supports DPA’s campaign to legalize and sensibly regulate marijuana in New York State and we do not believe any additional investigations or reports are needed to justify this long overdue reform. However, OIG-NYPD could use marijuana arrests as a launch point to investigate racial disparities in NYPD enforcement practices generally, as they are similarly present in arrests for fare evasion, sex work, and countless other offenses.

 

Police Perjury, or ‘Testilying’

A recent New York Times article begins, “A federal judge in Brooklyn has told the city to prepare for a court hearing regarding the prevalence of lying by New York City police officers and whether the New York Police Department has done too little to discipline officers who testify falsely.”[3] As a public defender, I can assure you that such lying is prevalent and the NYPD has made no recognizable efforts to meaningfully address it. Likewise, the imbalance of power in the criminal legal system that pressures defendants to accept plea deals rather than go to trial also enables prosecutors to provide cover for police perjury, or “testilying,” by making offers that defendants all-but-cannot refuse.

The judge cited in the article was the highly-regarded Hon. Jack B. Weinstein of Federal District Court in Brooklyn. The case in which the judge issued this decision involved a 59 year-old bodega cashier charged with drug dealing. He had been fully strip-searched in addition to being arrested and detained before the case against him fell apart as surveillance video showed the arresting officers’ account was false.

I have ample experience fighting police lying in court. As but one example, in 2014, I represented a man named Jeffrey Herring who was arrested for gun possession. (I am using his real name because his story was featured in the New York Times and because he has been cleared of wrongdoing, his case dismissed.) Mr. Herring insisted the gun was planted by the police and his story never wavered. After receiving a letter from the District Attorney’s office on the day before a hearing with notice that one of the officers had previously been found incredible as a matter of law by a judge in Brooklyn Supreme Court, my colleague and I started to dig deeper. We discovered that the same team of arresting officers had troubling records of misconduct and false testimony relating to gun arrests with near-identical facts. They adhered to a pattern involving an apparently fictitious informant, as they did in my case. We discovered several more cases in which the same arresting officers were involved in gun possession cases that fell apart under scrutiny.

We were able to get the case against Mr. Herring dismissed and the Kings County District Attorney’s office announced an investigation into the officers. Yet even after The New York Times reported on the apparent trend in misconduct by these officers and the trail of dismissed cases they left behind, the discredited officers remained on the force. They continued testifying as witnesses for the prosecution, still apparently adhering to the same basic pattern of perjury and evidence-tampering. A public defender with The Legal Aid Society working on another case they brought in had to learn about their unreliability through The New York Times article.[4] The District Attorney’s investigation had apparently ended and, as far as I know, the officers remain on the force. We believe the Brooklyn District Attorney continues to rely on them. The Council should also know that the new Gun Courts, designed to pressure faster and harsher pleas with longer jail sentences for cases involving alleged gun possession, are likely only exacerbating this phenomenon.

Of course, testilying is not limited to gun possession cases. I have fought it in countless other cases involving planted drugs, illegal searches, and other misconduct. In fact, I believe fabricated pretexts of marijuana use (i.e. by smell) and traffic infractions, which are generally difficult or impossible to disprove in court, have replaced stop-and-frisk as the primary mechanism for police searches.

Policing Communities Through So-Called “Gang” Raids

The NYPD’s enforcement actions against so-called “gangs” raise so many issues that they warrant a separate hearing by the Council, in addition to an investigation by the OIG-NYPD BDS, along with law professors, community activists, civil rights attorneys and others, signed on to a April 2017 letter on this subject written by policing expert and Brooklyn College sociology professor Alex Vitale to Philip Eure of the OIG-NYPD. The letter noted, in short:

Over the last several years, hundreds of people have been arrested and charged with state conspiracy or federal RICO violations as a result of NYPD investigations. In many cases, individuals are charged with conspiracy to commit murder or other violent crimes absent allegations of direct involvement, raising substantial concerns about arrest and prosecutions based on guilt by association rather than actual involvement in violent crimes. Media reports indicate that many of these cases are built at least in part on police monitoring of social media accounts and the creation of fake social media accounts to lure others to “befriend” them, giving police access to otherwise private information. Many of those targeted by these practices are juveniles and almost all of them are non-white. We have also become aware through press reports and Freedom of Information requests that the NYPD is using one or more databases to classify and track people as gang members. In addition, the defense bar reports that the NYPD is utilizing large data mining software such as Palantir and sharing that information with federal law enforcement agencies [almost certainly including immigration authorities]. We also understand that these investigations involve substantial electronic surveillance of people including access to CCTV data in public housing complexes, wiretaps, and possibly the use of Stingray technology. The individuals being prosecuted pursuant to these raids are facing lengthy prison sentences.

We are concerned that gang designations further alienate people who are already marginalized in society and may ultimately be counterproductive to public safety. Crucially, a previously FOILed document used by the NYPD to identify people as members of a gang included no past criminal conduct in its listed criteria, but rather their neighborhood, scars, associations and other loose categorizations. In our letter, we further ask for an investigation into how the NYPD uses its gang databases, or designations. Specifically, we asked how people are selected to be placed in the database, whether and how they may challenge it, and how it is used to direct enforcement actions, in addition to other questions. We believe the NYPD’s gang classifications are likely to be overinclusive and inaccurate, like the stop-and-frisk practices that have been found unconstitutional. However, as internal records, they have not, to my knowledge, been subjected to any judicial review.

We are particularly concerned that arbitrary or unfair gang classifications may be shared with immigration authorities. Recently, four individuals were arrested by Immigration and Customs Enforcement (ICE) at Brooklyn Criminal Court. They were appearing in court on Desk Appearance Tickets relating for misdemeanor trespass charges after police allegedly found them hanging out on a rooftop, and three had no criminal records, but ICE justified its courthouse arrests by purporting that the four were members of a gang.

Again, I ask the Council to hold a separate hearing on this crucial issue.

Arrests Outside Methadone Clinic and Needle Exchange

For many years, the NYPD has targeted areas surrounding methadone clinics and needle exchanges for enforcement and harassment. This is widely known in public health circles, and police have discussed reforms, yet aggravatingly, it persists.[5] Often, the arrests involve deceptive buy-and-busts or other predatory tactics that sometimes result in serious charges against people who are actively and even successfully turning their lives around. Furthermore, it is impossible to know how many people have shied away from medication-assisted treatment and other widely-accepted and publicly-funded harm reduction resources due to fear of police presence. It appears that NYPD uses these resources as a tool in the so-called Drug War. Importantly, there is no evidence that prohibition policies and police intervention actually reduce drug supplies, whereas the harm reduction resources they are infringing upon have been proven to save lives.

Relatedly, the opioid epidemic has shone a spotlight on one critical but underreported impact of marijuana arrests. Research funded by the National Institute on Drug Abuse found that legally protected marijuana dispensaries were associated with reductions of 16 to 31 percent in opioid overdose deaths.[6] By comparison, the Mayor’s opioid overdose prevention initiative, HealingNYC seeks to reduce opioid deaths by 35 percent over the next 5 years, in large part through stepped up NYPD enforcement. Other experts have argued that the criminalization of marijuana led to the over-prescription and over-use of opioids and eventually the epidemic that we are struggling to address today. Simply put, marijuana seems to be a safer alternative to opioids in pain management, but criminalization undercuts that benefit.

Both the Council and the OIG should investigate the NYPD’s continued execution of the Drug War and, more generally, our City’s allocation of resources to reduce addiction and problematic drug use.

Thank you for your consideration of our comments. If you have any questions, please feel free to reach out to Jared Chausow in my office at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Harry Levine, 60,000 Jim Crow Marijuana Arrests in Mayor De Blasio’s New York (Drug Policy Alliance & Marijuana Arrest Research Project 2017), https://www.drugpolicy.org/sites/default/files/Marijuana-Arrests-NYC–Unjust-Unconstitutional–July2017_2.pdf.

[2] Justin McCarthy, Record-High Support for Legalizing Marijuana Use in U.S. Gallup News, Oct. 25, 2017, http://news.gallup.com/poll/221018/record-high-support-legalizing-marijuana.aspx.

[3] Joseph Goldstein, Brooklyn Judge Seeks to Examine Prevalence of Police Lying N.Y. Times, Oct. 17, 2017, https://www.nytimes.com/2017/10/17/nyregion/brooklyn-judge-police-perjury-nypd.html.

[4] Nick Pinto, The Incredibles: Judges Said These Cops Can’t Be Trusted, so Why Does the D.A. Rely on Them?,  Village Voice, Nov. 1, 2016, https://www.villagevoice.com/2016/11/01/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-d-a-rely-on-them/.

[5] John Knefel, The Common Cure for Heroin Addiction is Also a Magnet for Police Harassment, Buzzfeed, Feb. 19, 2015, available at https://www.buzzfeed.com/johnknefel/how-police-harassment-at-methadone-clinics-makes-quitting-he?utm_term=.rj94qpORg#.ekNOjm12P; see also VOCAL-NY, Beyond Methadone: Improving Health and Empowering Patients in Opioid Treatment Programs (2011), available at http://www.vocal-ny.org/wp-content/uploads/2011/10/Final-Methadone-Report1.pdf.

[6] National Institute on Drug Abuse, Study Links Medical Marijuana Dispensaries to Reduced Mortality From Opioid Overdose NIDA (2016), https://www.drugabuse.gov/news-events/nida-notes/2016/05/study-links-medical-marijuana-dispensaries-to-reduced-mortality-opioid-overdose (last visited May 30, 2017).

BDS TESTIFIES BEFORE THE NYS ASSEMBLY HEARING ON HEALTHCARE IN NYS PRISONS AND LOCAL JAILS

TESTIMONY OF:

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Written with: Riley Doyle Evans

Presented before

The New York State Assembly Committees on Health and Corrections

Hearing on Healthcare in New York State Prisons and Local Jails

October 30, 2017

My name is Kelsey DeAvila and I am the Jail Services Social Worker at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in nearly 40,000 cases in Brooklyn every year. As part of our representation, BDS dedicates staff, including myself, to provide direct services and advocacy for our clients while they are incarcerated in New York City jails in pre-trial detention, serving sentences of less than a year, or returning from New York State Department of Corrections and Community Supervision (DOCCS) prisons upstate. I thank the New York State Assembly Committees on Health and Corrections, and in particular Chair Gottfried and Chair Weprin, for inviting us to testify regarding healthcare provision in New York State prisons and local jails.

I am providing upfront a list of recommendations that are explained in detail later in my testimony:

Recommendation #1: Invest in improvements to community-based health care, including mental health and addiction treatment, and ensure health equity across all communities.

Recommendation #2: Decarcerate by dramatically reducing pre-trial detention, reforming our criminal discovery laws, enacting sentencing reform, ending the Drug War and Broken Windows policing, and swiftly closing the most abusive prisons and jails.

Recommendation #3: Provide confidential and medically- and therapeutically-appropriate healthcare facilities in prisons and jails, and ensure access to care by more efficiently using existing security staff for medical escorts and removing all medical decision-making from the hands of correction officers.

Recommendation #4: Ensure continuity of care for people upon intake, while incarcerated, and upon release.

Recommendation #5: Provide destigmatized medication-assisted treatment for drug addiction in all prisons and jails.

Recommendation #6: Ensure timely access to medication and outside specialty appointments.

Recommendation #7: Coordinate collective purchasing of expensive medication for Hepatitis C and other chronic illnesses to ensure full access to treatment in state prisons and local jails.

Recommendation #8: Responsibly expand the use of Electronic Medical Records.

Recommendation #9: Ensure access to consistent transition-related care for transgender people in prisons and jails.

Recommendation #10: Ensure free access to quality feminine hygiene products as needed.

Recommendation #11: Offer female doctors and other medical staff to incarcerated women in all prisons and jails.

Recommendation #12: Streamline the process for expecting mothers to access nurseries or other appropriate housing and remove unnecessary obstacles.

Recommendation #13: End the use of private healthcare contractors across the state, as New York City has done.

Recommendation #14: End the torture of solitary confinement and replace it with more humane and effective alternatives by passing the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act (S.4784-Parker/A.3080-Aubry).

Recommendation #15: Promote the axiom among correctional healthcare staff that #BlackLivesMatter, as do the lives of other marginalized people in our prisons and jails.

Background

Before focusing on specific issues related to healthcare delivery in correctional facilities, we wish to highlight that addressing the public health calamities associated with incarceration should not be considered in a vacuum. New Yorkers who pass through local jails and state prisons each come from and will return to communities around the state. Mitigating the harm of incarceration therefore involves addressing disparities in healthcare and outcomes which disproportionately impact poor communities and communities of color. Before people enter the criminal legal system, inadequate healthcare results in disproportionately high rates of chronic conditions among these communities, which are only exacerbated in jails and prisons. Similarly, a dearth of adequate community-based mental health and drug treatment funnels people struggling with mental illness into handcuffs, jails, and prisons, where their conditions are met with violence and isolation rather than appropriate care.

At the end of the system, people who return from prison or jail to communities lacking adequate healthcare infrastructure and affordable and supportive housing are at serious risk of falling through the cracks. In the case of people with mental illness the result is too often a tragic, churning cycle of incarceration, lapses in treatment, homelessness, and recidivism. For people with chronic medical conditions – even with adequate treatment in prison – a poorly managed healthcare transition during re-entry can lead to interruptions in care followed by irreversible sickness and premature death.

In sum, as you take on the important issue of correctional health, we urge you to keep in mind how the challenges in question fit into a larger continuum. Ultimately, prisons and jails were never intended to serve as medical facilities and conditions inside are fundamentally inappropriate to delivering a high standard of care. Decarceration while investing in healthy communities must remain the primary goal. Ending unnecessary arrests and discriminatory bail practices, adopting sentencing and discovery reform, and establishing a robust framework to divert people in need of treatment would all contribute to this end.

Selmin Feratovic died at the age of 28 while detained at Otis Bantum Correctional Center on Rikers Island less than two weeks ago, on October 19, 2017. He had been in pre-trial detention for nearly seven months, presumed innocent but locked in a cage because the local prosecutor, who alleged he had tried to steal from a laundromat coin machine, requested an absurdly high bail and the judge granted it. Specifically, a man accused of stealing coins was suddenly asked to cover $50,000 bail or sit in jail for the remainder of his case. The Bronx District Attorney overcharged the case as a violent felony and refused to make a reasonable plea offer, leaving Mr. Feratovic in jail at an approximate cost of $140,756 over the seven months.[1] Imagine what that money could have done to help him in the community. According to his attorney at the Bronx Defenders, he had struggled with opioid addiction after receiving a prescription for oxycodone while recovering from a serious motorcycle accident. Drug treatment in the community was inadequate. “Police sources” have told the press that he died of an apparent overdose, but the investigation is ongoing and, as his attorney wrote in a New York Daily News op-ed, the cause of his death is, more broadly, systemic injustice. That is why we say criminal justice reform is a matter of life and death.

In the meantime, because people with mental illness and chronic medical conditions are overrepresented in our criminal legal system, it is essential that healthcare in prisons and jails be as compassionate, accessible and appropriately resourced as possible. In addition to the moral and legal obligations to provide treatment, public health stands to benefit if our prisons successfully diagnose and treat conditions which may have been undetected or mismanaged in the community. Ensuring continuity of care in re-entry has the potential to reduce recidivism, improve public safety, and most importantly, to improve health outcomes in communities across the state. To this end, I would like to share some specific insights drawn from the experiences of our clients and staff, which I hope will be useful in your efforts to improve healthcare in New York’s jails and prisons. I also lend support for the comments of certain other organizations testifying today, such as the Correctional Association, who offer tremendous insight and expertise regarding the current state of affairs in our prisons.

Access to Care

Access to care has long been and remains a fundamental concern for our clients in city jails and state prisons. Access to care in correctional settings is hamstrung by several distinct, but interconnected issues. Despite the significant healthcare needs of the population they house, jails and prisons are not constructed like hospitals, which prioritize clinical space and access to providers.

For instance, the Anna M. Kross Center – a jail on Rikers Island which houses many of the system’s most high-needs patients – was built haphazardly over many years. As each new wing of the jail was added, the corridor connecting the housing units to the central clinic became longer and longer. Now many patients must be escorted close to a mile to access treatment. In an emergency, the problems with this arrangement are obvious, but even for routine medical visits, such distances create bureaucratic and staffing headaches. Healthcare staff on Rikers Island have taken the initiative to establish “mini-clinics” closer to housing units, which serve as a stop gap. However, these spaces are often cramped, sometimes lack necessary infrastructure to maintain hygiene, and may not allow for confidentiality.

More broadly, jails and prisons lack adequate confidential treatment spaces. A dearth of dedicated treatment spaces near housing units is particularly detrimental to effective mental healthcare delivery. Many, if not most, people are uncomfortable candidly reflecting on their struggles within earshot of other incarcerated people and custody staff, especially as members of the latter group are known to prey on vulnerable incarcerated people. Clinical sessions in converted utility closets or on the dayroom floor are a far cry from the therapeutic setting patients with serious mental health conditions need and deserve. Even when people are seen in a central clinic, privacy is very often compromised by security staff who linger in the room, or because patients are brought in groups and crowd treatment spaces.

Delivering Healthcare in a Security-Driven Environment

Compounding physical plant limitations, the predominance of security in correctional institutions further inhibits access to healthcare. For example, when a facility goes on lockdown for security reasons, all movement may be halted, sometimes for extended periods. This means no one is able to go to the clinic, leading to delays care. Even when facilities are operating as designed, security interference in access to care and treatment decisions is a common occurrence.

In New York City jails, every incarcerated person must be escorted by a correctional officer to and from the clinic. As uniformed staff are often occupied with other tasks, or otherwise unwilling to help, escort shortages frequently result in missed appointments and treatment delays. One sensible fix to overcoming the inevitable competing demands on correctional staff is to more wisely balance staffing to include roving medical escort posts during day-shifts who are not assigned to other tasks. We believe this could be achieved at present staffing levels through more efficient staff management, ensuring adequate escorts, and limiting instances in which staff are pulled away from crucial security positions.

Beyond their role as escorts, correctional officers serve in many respects as gatekeepers to medical care, which poses serious dangers to the well-being of people in custody. For instance, in New York City jails, an individual seeks medical care by submitting a “sick call” request to the officers in their housing unit. The officers are then responsible for forwarding the requests to medical staff who schedule an appointment. Under this arrangement, correctional staff can and do refrain from forwarding sick call requests to the clinic, or falsely claim that an individual “refused” to be brought to their appointment, as a tool of control or punishment.

One BDS client who had filed complaints against correctional staff was repeatedly denied sick call as well as escorts to the clinic, and was documented as having “refused” care. As a result of being denied timely medical treatment for a cut, the client developed gangrene which nearly required amputation. As this case illustrates, denying access to medical care is a particularly cruel form of punishment. It is also used to conceal injuries sustained from officer brutality.

A pilot effort in certain New York City jails seeks to mitigate this issue by establishing confidential “sick call” boxes in common areas, which are only accessible to healthcare staff. This common-sense sick-call reform is a welcome first step which should be expanded in other institutions. However, situating access to treatment and medical decision-making as the exclusive domain of healthcare providers should be the ultimate goal.

A recent incident with another BDS client demonstrates the significant health risks that arise when security staff can simply override medical determinations. This client had a diagnosed seizure disorder, which was not appropriately managed with medications at Rikers. Despite written notification from medical staff outlining the specific medical dangers should he be placed alone in a cell, he spent numerous months in solitary confinement, over the repeated objections of healthcare staff. His isolation only exacerbated his medical condition, resulting in weekly seizures, one of which led to a broken tooth and shoulder injury. Our office advocated for his immediate transfer to a hospital or an open dorm. He was sent to Bellevue Hospital for a week of tests, but was ultimately sent back to Rikers to finish his time in solitary confinement.

Dual Loyalty and the Role of Healthcare Professionals

Arising from the security concerns in jails and prisons, correctional healthcare staff face dual loyalty challenges, which can interfere with their providing compassionate and appropriate care. On the one hand, medical and mental health providers are ethically bound to treat patients. On the other hand, providers are pulled toward loyalty to correctional staff who are charged with ensuring the providers’ safety. This dynamic can lead providers to doubt their patients’ credibility, and to feel hesitant to speak out when they witness or suspect abuse on the part of corrections officers. New York City Health and Hospitals Corporation, the healthcare provider in NYC jails, trains their staff to manage dual loyalty. While dual loyalty training is far from a complete solution, we believe it is a best practice which should be mandated in all jurisdictions.

In addition to dual loyalty training, jail and prison officials should welcome a culture shift which empowers healthcare officials to weigh in on management decisions and have unfettered authority with regard to treatment matters, unless a genuine, immediate security emergency is at play. Simultaneously expanding de-escalation and mental health first aid training among corrections staff can help officers better understand how treatment interventions work and why they should be given priority.

These steps should be taken urgently to prevent the tragedies all too common in New York’s prisons and jails. Perhaps such efforts would have spared Samuel Harrell who, instead of receiving compassionate mental health interventions, was reportedly beaten to death in Fishkill State Prison when he experienced an obvious Bipolar episode. The same may be said for Bradley Ballard and Jerome Murdough who died, neglected in their cells on Rikers Island, despite corrections and healthcare staff being aware of their dire conditions.

Continuity of Care

Continuity of care is particularly important in correctional institutions owing to the high prevalence of people with chronic medical conditions (e.g. diabetes, hypertension), infectious diseases (e.g. Hepatitis C) and behavioral health and addiction issues – conditions for which lapses in care can have serious impacts on health outcomes. Death by overdose is particularly common upon release from incarceration.[2] Ensuring continuity of care requires that people have timely and consistent access to treatment upon arrest, during incarceration, and when they return to the community. In each phase, various challenges arise that impact our clients’ wellbeing, and the health of their home communities.

On the front end, we reiterate that it is imperative that New York State do a better job providing equal access to compassionate healthcare to all communities. In addition to making our state more just, improved healthcare access in poor communities would likely reduce contacts with the criminal legal system. Moreover, better community healthcare would result in better and more cost-effective management of chronic health conditions when people are locked up in jails and prisons, thanks to more consistent diagnosis and treatment prior to detention. More robust community mental health and addiction management services would benefit public safety by reducing unnecessary arrests of people who require treatment interventions and support.

Substance Abuse and Addiction Management

Continuity of care issues arising as people enter the New York City jail system are many and complex. Our clients’ experiences suggest that Health and Hospitals Corporation and the Department of Corrections have addressed various challenges with mixed results. The agencies should be acknowledged for their efforts to safely manage substance abuse and addiction among people in custody. Prompt screenings for alcohol withdrawal appear to function well to avoid possibly fatal withdrawals. The substance abuse program “A Road Not Taken” offers people struggling with addiction an opportunity to be housed among peers and receive programming geared to support their efforts to get clean.[3] We believe there are best practices to be gleaned from these programs which should be evaluated for use in other jurisdictions.

The Key Extended Entry Program (KEEP) in New York City jails facilitates detox and manages methadone treatment for opiate-dependent individuals. Unfortunately, people facing state prison time are excluded from KEEP because state prisons do not offer methadone management. Many people face state prison time “on paper” although there is little real chance they will be sent to state prison. As cases proceed through plea bargaining, prosecutors wait until pleas are entered to withdraw the most serious charges, despite all parties involved being aware that prison time is not a likely outcome. One collateral consequence of this practice is that many people who need methadone treatment are excluded from KEEP. More honest prosecutorial practices would benefit public safety, as people maintained on methadone are more likely to continue treatment in the community and avoid relapse. Likewise, the state prisons system should offer methadone treatment and other medication assisted treatment (MAT), particularly in this era of skyrocketing opioid overdose deaths. Research has shown that MAT can cut the mortality rate among addiction patients by a half or more.[4] MAT in jails and prisons and other public health approaches to tackling opiate addiction should be expanded across jurisdictions, according to best practices of community-based healthcare.

Relatedly, we are concerned about the knee-jerk embrace of Vivitrol among corrections officials as an alternative treatment for opiate addiction. Although the drug claims to block an individual’s opioid receptors in long-lasting doses, we are dubious about the drug’s effectiveness in treating addiction sustainably. It is our position that tackling addiction must address root causes that lead people to use drugs in the first place – poverty, trauma, desperation, and other factors. We urge the state to maintain a critical perspective on drugs peddled as a “magic bullet” for addiction. Rather, we support committing greater resources to treatments that have been subjected to adequate study and been found to sustainably manage opiate addiction, prevent overdoses and improve public health.[5]

 Medication Delivery

Despite some strengths, New York City jails fall short in the realm of continuity of care in several important respects. One of the most common complaints I receive is about the failure to consistently deliver medications in a timely manner. It is not uncommon for our clients to wait several days after being taken into custody before they receive crucial medicines. Often, they do not receive their medications until I advocate on their behalf. Lapses may also occur when individuals travel between jails. Whether high blood pressure medicines, inhalers, or anti-psychotic medications, these lapses can have devastating consequences.

Specialty Appointments

Another persistent shortcoming involves appointments with outside specialty providers. By design, prisons and jails cannot staff a full range of specialists full-time. However, for a variety of sometimes elusive reasons, outside specialty appointments and follow up visits are frequently delayed or missed altogether. Quite often, at the time of their arrest, clients have upcoming follow-up appointments scheduled with specialists. For unknown reasons, Health and Hospitals Corporation too often fails to promptly schedule and deliver follow-up visits, despite being informed of the situation by the patient and our office.

In one recent case, our client had 2 stents around his kidneys which were due to be removed after only 2 weeks. His arrest delayed the necessary operation and healthcare staff in the jail ordered an assessment before moving forward. Despite significant advocacy from our office, approximately 5 months went by without a response, and the specialty appointment to remove the stents had not been ordered. Eventually, the client developed an infection which had to be treated, further delaying the operation to remove the stents. Meanwhile, our client suffered a great deal of pain and when urinating, he became lightheaded. Over time, his appearance declined; his skin became pale, and he was eventually transferred to a hospital where he finally received treatment.

In other cases, the logistical and security complications involved with transporting people to and from outside clinics are a central challenge. For instance, when correctional escort officers are absent or reassigned to other posts, a chain reaction can delay an appointment for months. I often receive reports of people waiting hours in the jail intake for their escort. If they ever leave, they arrive late for their appointment, waiting several more hours at the specialty clinic, before eventually being told that they arrived too late to be seen that day. Rescheduling missed appointments only compounds delays in treatment. In light of these circumstances in New York City, where a vast public hospital system is relatively accessible, we surmise the challenges are even greater in rural communities. Sufficient escorts and dedicated specialty schedulers who interface between correctional staff and specialty clinics are fundamental to address specialty care delays.

Chronic Care

Improving treatment of chronic medical conditions is also relevant to continuity of care. Individuals who have initiated a course of effective but costly Hepatitis C treatment in the community should be continued on this treatment when in custody. Local jurisdictions can seek reimbursement waivers from the federal Centers for Medicare and Medicaid Services (CMS) for this treatment.[6]  More broadly, despite their significant up-front cost, sound public health policies require treating Hepatitis C in correctional settings to improve health outcomes among individuals and avoid longer term costs associated with cirrhosis and other related conditions.[7] Unfortunately, considerable barriers are foreseeable during the present administration toward securing more general waivers for federal reimbursement for chronic care delivered in prisons, but DOCCS should collaborate with local jail administrators and others, perhaps across the country, in advocating for funding.

While we support advocacy to reform Medicare and Medicaid law to expand federal funding for correctional health, we encourage the state to be proactive in other ways in the meantime. As noted in a 2016 Yale study, reducing costs is one way to expand availability of Hepatitis C treatment. The study describes cost-reduction strategy including coordination between state agencies, for example Medicaid and DOCCS, along with county agencies, to purchase drugs collectively and with greater buying power. Alternatively, while prisons are excluded from the federal 340B Drug Discount Program, partnering with outside providers which are eligible, may offer cost savings. However, securing treatment through outside providers can give rise to additional challenges, as mentioned previously.[8]

Re-Entry

Others testifying today will certainly offer more comprehensive recommendations to improve continuity of care during re-entry. Nevertheless, I would like to highlight a few of the recurrent issues handled by our Re-Entry Unit, some of which could be relatively easily addressed. In addition to a 30-day supply of medications, we believe DOCCS should make a greater effort to discharge people with a copy of their essential medical records, which would help to avoid delays in securing treatment in the community. At present, people must have the wherewithal to request a copy before they are discharged, and are not prompted to do so during pre-release counseling. Predictably, many do not.

Furthermore, bureaucratic missteps can inhibit access to care upon discharge and should be prevented. Despite welcome efforts to enroll people in Medicaid prior to discharge, people are frequently released on inpatient Medicaid status, rather than outpatient status. In practical terms, this limits the range of services available to hospital care. Our re-entry specialists find it takes days to weeks to correct this relatively straightforward error. In the meantime, people are unable to access the full range of services available through the health-home system, relying instead on emergency rooms, thereby further draining public health resources.

Additionally, our clients’ experience suggests that DOCCS does not do enough to educate people to navigate the complex and intimidating healthcare system awaiting them in the community. A first step to resolve this issue would be to better incorporate healthcare staff and navigators into the pre-release process. This process should offer opportunities for people close to discharge to ask questions of healthcare providers who can provide guidance on managing their health conditions once out of prison.

This is especially important for the large proportion of aging people in New York State prisons who are more likely to have higher healthcare needs, and at the same time, be less familiar with an evolving healthcare landscape. More than 10,100 people aged 50 or older are currently incarcerated in New York, according to the latest available data. Even as the total prison population in this state has gradually decreased, the number of individuals in this older adult category has jumped by 46 percent.[9]

Advocates like the Release Aging People in Prison (RAPP) Campaign, Parole Justice New York, Citizen Action and the Challenging Incarceration collective are pushing Governor Cuomo and the Legislature to adopt reforms that would allow for many incarcerated older adults, who have the lowest recidivism rates, to be released. We support these efforts – prisons are not well suited to handle the complex and expensive healthcare needs of older adults, and are simply not humane institutions to house aging people. In addition to securing release for these individuals, it is imperative that state and local officials take steps to bolster the quality and range of healthcare services to meet their unique needs.

Currently, in New York City there is a broad slate of programs and services for older New Yorkers, and a growing network of re-entry resources, but very little overlap between the two. Older adults endure unique hardships in prisons and jails, as the facilities and staff are not adequately equipped to support them. Crucially, family members and others in the home and community who would traditionally serve as caretakers are prevented from doing so. Likewise, few community-based organizations that serve older New Yorkers specialize in meeting the needs of returning citizens. In sum, dedicating adequate study and resources to address shortcomings in service provision at the intersection of aging and reentry will become increasingly urgent in the coming years.

Parole also has a role to play in continuity of care. Barring certain exceptional cases, our clients report that parole officers have adopted an increasingly punitive orientation over the years, and they do little to assist them to navigate the healthcare system after they arrive home. Because parole offices are situated locally, they are better positioned than upstate prisons to assist people to access care in their communities. In addition to making information about area providers available, parole officers should take initiative to build relationships with health-home networks and help returning citizens resolve bureaucratic issues with Medicaid and other agencies. More broadly, keeping people healthy improves public safety and should be a high priority in the agency’s mission.

Quality Control: Electronic Medical Records

There is certainly more to say regarding quality control strategies, but my remarks will be limited to lending support for expanding the use of Electronic Medical Records (EMRs), which may be funded through CMS “Meaningful Use” funds. When used properly, EMRs have potential to assist healthcare management identify and resolve problems, balance staffing with demand, and deliver evidence-based care. In the case of individual patients, those who transfer or reenter a facility are less likely to experience serious lapses in care, and schedulers can be alerted when chronic care follow-up deadlines are missed or specialty care is delayed. At the system-wide level, EMRs can help identify trends, bolster quality improvement, and improve transparency regarding health outcomes.[10]

Gender and Gender Identity and Expression

Transition-Related Care

The difficulty surrounding a transgender person’s ability to access hormones while incarcerated in our jails and prisons is not uncommon.  In order for a person to receive transition-related medication they will first need a diagnosis of Gender Dysphoria.  This can be problematic to many people who do not have access to safe and affordable healthcare in the community prior to arrest and will only delay their necessary treatment once detained.  Transgender clients frequently report delays in accessing sick call and scheduling an appointment for a diagnosis evaluation.  It is important to note that those who do need medical treatment related to their transition often do not receive consistent treatment. We know that abrupt and extended halts in hormone replacement therapy can have serious and irreversible effects on one’s physical and mental health, yet such interruptions are sadly common.

Feminine Hygiene Products

Access to feminine hygiene products is critical for women’s health. Doctors recommend changing sanitary napkins or tampons every four to eight hours to prevent bacterial and fungal infections that may lead to serious health problems. All women who are incarcerated should have access to feminine hygiene products in sufficient quantities to meet their individual needs.

According to a recent survey by the Correctional Association, 54 percent of respondents in New York prisons said they did not get enough sanitary napkins each month. This is consistent with the experience of our attorneys and social workers supporting our clients detained at Rikers. Some clients tell us that they are given only 12 sanitary napkins at a time. In other blocks, pads are left out in a bucket or box in the bathroom. This supply is sometimes insufficient for women with heavier flows. Women without a sufficient supply must then request additional napkins from guards, who often use the request as a way to control women and assert their authority over her. Our clients tell us that they have to beg officers for more free pads only to be treated with disrespect that make them feel ashamed. Furthermore, the free napkins provided at Rikers are of very poor quality and most of our clients will go to great lengths to purchase name brand napkins from the Commissary. Our clients report that the free napkins are not properly absorbent and thus easily lead to staining of their uniforms.

Renee’s story is a perfect example of how Rikers current policy on feminine hygiene products affects poor New Yorkers. Renee, a 24-year-old BDS client, spent nine months detained on Rikers. She asked her BDS social worker not to visit her while she was on her period because she was worried about leaking through her uniform and having to walk the halls of the jail with a bloodstain. Renee had to choose between the shame of leaking blood while on her period and meeting with her legal team. Renee comes from a low-income family and worked overtime in the jail to pay for her basic needs including deodorant, soap and sanitary napkins. She shared that she did not have enough sanitary napkins and she would try to wear the same napkin for as long as possible to ration the supply she was able to purchase from the Commissary because the free pads were of such low quality.

Staffing Female Providers

Many of our female clients have a history of physical and sexual abuse prior to incarceration.  For many of these women, their trauma has never been processed.  It is essential for medical staff to be trained on how to treat women with a history of trauma because pelvic and breast exams can be re-traumatizing. In addition, women should be allowed to choose female doctors for gynecological care.  At the Rose M. Singer Center, the female facility on Rikers Island, many of our female clients have reported feeling unsafe visiting a male doctor.  This becomes a barrier and our clients will not seek medical attention, even during urgent and critical situations due to the fear of being assessed by a male staffer.  Though the policy in our New York City jails allows for a female to be present when a male doctor is examining a woman, it does not negate the feelings many of our clients’ experience.

Access to Nursery for Expecting Mothers

In a recent case, a BDS client was 7 months pregnant when she was sentenced to Bedford Hills Correctional Facility.  Prior to her sentence, she was held in the Pregnant Mother’s Unit on Rikers Island and, with the help of Riker’s Nursery Manager, applied to the Bedford Hills Nursery in the hopes that there would be a smooth transition into the unit once transferred.  Unfortunately, our client waited several months to hear if she had been approved to the nursery and was sent to the General Population Unit at Bedford Hills upon transfer.  Our client had a high risk pregnancy and needed a setting that would allow a stable and orderly environment. Being in General Population only increased her stress levels, putting her unborn child at greater risk. It is important for there to be a streamlined process for expecting mothers in our jails, awaiting transfer to a state facility, so there is no gap in care or appropriate housing.  This will contribute not only to the mother’s health, but to the safety of the child.

For Profit Providers

We urge an end to the use of private healthcare contractors in correctional facilities across New York. Following several jail deaths and other tragedies, New York City ended its contract with Corizon at the end of 2015 and incorporated Correctional Health Services into the city hospital network, NYC Health and Hospitals Corporation. It is too early to assess the full impact of the change; however, certain improvements are apparent. More generally, we believe there are several strong arguments for replacing private companies who are primarily concerned with their bottom line, with mission-driven and public health oriented providers.

The most obvious concern is that private companies will aim to cut costs by providing substandard care. After many years with Corizon in New York City jails, we believe this is a legitimate concern. Moreover, it is our experience that the contracting relationship with for-profit companies only exacerbates issues of dual loyalty. When healthcare providers feel beholden to corrections officials to retain their contracts, managers and line-staff alike are less willing to raise objections in the face of abuse or neglect.

Furthermore, utilizing private companies only deepens the challenge to recruit qualified and enthusiastic providers to work in correctional settings. It is unlikely that young healthcare professionals, eager to contribute to health justice, will be inspired join a private company with misaligned values. On the other hand, public health systems or mission-driven non-profits may attract more talent. As mass incarceration continues to garner the widespread attention across the country, it should be possible to recruit passionate healthcare providers to work in prisons in much the same way humanitarian organizations recruit doctors to treat patients in warzones and refugee camps.[11]

Solitary Confinement

To close, I would like to address the issue of solitary confinement; as this practice represents the coalescence of all the issues discussed already and is of grave concern to our office. As you probably already know, solitary confinement entails locking a person in a cell 23-24 hours per day, with one hour of recreation alone in what amounts to a slightly larger cell. The health impacts of solitary confinement are significant and well documented.

As Health Committee Chair Gottfried has said in a press release by the Campaign for Alternatives to Isolated Confinement, “Solitary confinement has catastrophic long-term effects on physical and mental health. No responsible medical professional could stand for this, and New York State shouldn’t either.”

Physiological conditions brought on by solitary confinement include gastrointestinal and urinary issues, deterioration of eyesight, lethargy, chronic exhaustion, headaches and heart palpitations among others.[12] Solitary is further shown to cause psychological trauma including severe depression, anxiety, insomnia, confusion, emotional deterioration, and fear of impending emotional breakdown.[13] In addition to hallucinations and delusions,[14] studies consistently find that prolonged solitary induces bouts of irrational anger and diminished impulse control, leading to violent outbursts;[15] invoking the very behavior it purports to manage.

Scientific and legal understandings of the harm of solitary confinement are not new. In fact, recognition that solitary confinement is inhumane and ineffective dates back to 1890, when the US Supreme Court found in In Re Medley that placement in solitary confinement caused extreme and long-term harm, writing that a “considerable number of the [people in solitary] fell, after even a short confinement, into a semi- fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” In 1993, Correctional psychiatry expert Dr. Stuart Grassian identified what has been called SHU Syndrome, which includes the aforementioned symptoms.

A 2014 study revealed that people subjected to solitary confinement in New York City jails were 6.9 times more likely to engage in acts of self-harm than those who were not.[16] The suicide rate in DOCCS’ Special Housing Units (SHU) is nearly six times higher than that of the General Population (GP).[17] These tragic facts confirm what mental health experts have long concluded, namely that solitary is “inherently pathogenic; […] one of the most severe forms of punishment that can be inflicted on human beings short of killing them.”[18] In fact, one man who has been held in solitary confinement at Elmira prison for approximately thirty years, William Blake, described his long-term isolation as a “sentence worse than death.”

The United Nations Standard Minimum Rules for the Treatment of Prisoners, the “Mandela Rules,” expressly prohibit prolonged solitary confinement beyond 15 days as a form of torture or cruel inhuman or degrading treatment. Nevertheless, New York State prisons hold a disturbing number of people in solitary confinement, at a much higher rate than the national average with more subjected to the practice in county jails across the state.[19]

Contrary to clear direction from the National Commission on Correctional Health,[20] healthcare staff in prisons and jails are generally complicit in subjecting people to the harms of solitary confinement. Worse, healthcare staff are too often complicit in cases where solitary is clearly being used to cover up brutality. Once someone is placed in solitary confinement, the problems with access to care are exacerbated. Officers have even more control over access to sick call, and securing escorts from high security units to appointments is increasingly difficult.

Equally troubling, a recent report by Disability Rights New York uncovered rampant abuse of people with mental illness in Residential Mental Health Units (RMHU) at Attica State Prison. These units were intended to protect people with serious mental illness from the harms of solitary confinement under the SHU Exclusion Law. Instead people in RMHU were subjected to the same kind of punitive isolation without input from mental health staff, and in direct violation of the law. Horrifying accounts of verbal and physical abuse in the unit make the report even more disturbing.[21] This report reaffirms that New York must adopt comprehensive legislation prohibiting prolonged solitary confinement in any form.

BDS supports the efforts of New York State legislators and our grassroots partners in the Campaign for Alternatives to Isolated Confinement to enact the Humane Alternatives to Long Term (HALT) Solitary Confinement Act (S.4784-Parker/A.3080-Aubry) and bring an end to the torture of solitary confinement in New York State. The Corrections Commissioner in Colorado, Rick Raemisch, has already successfully implemented solitary reforms that mirror HALT.[22] These reforms include: A hard limit of 15 consecutive days in solitary confinement, with most serving far less; the use of therapy to address seriously problematic behavior; and a dramatic reduction in the overall use of solitary. In 2011, 1,500 people in Colorado prisons, or 7% of the prison population, were held in solitary; the state’s prison commissioner now reports that number has dropped to 18 people, or far less than 1%. These reforms mark a new era of compliance with the UN’s Nelson Mandela Rules for the Treatment of Prisoners. It is not only possible, it is absolutely and urgently necessary that we in New York follow suit.

For comparison, there are approximately 3,000 people in SHU in New York’s state prisons, at least hundreds more in keeplock (another form of solitary whose census DOCCS will not disclose), and likely hundreds more in local jails.

The New York Times conducted an investigation last year and found Black people to be far more likely to be subject to solitary confinement in New York State prisons, which, in addition to the aforementioned effects, exacerbates disparities in release determinations, as people in SHU are far less likely to be granted parole.[23]

We have ample client stories that illustrate the immense and often irreparable harm of solitary confinement, but by now you likely know what happened to Kalief Browder and others like him. This issue is beyond debate; action to pass HALT is needed now.

Conclusion

To improve healthcare in prisons and jails, it is necessary consider the broader context and circumstances that allow for substandard healthcare and outcomes to be the norm.

In a landmark article published in the New England Journal of Medicine, entitled #BlackLivesMatter – A Challenge to the Medical and Public Health Communities, Dr. Mary T. Bassett, M.D., M.P.H. writes that “the rate  of premature death is 50% higher among black men than among white men.” Dr. Bassett, who is Commissioner of the New York City Department of Health and Mental Hygiene, was citing her own department’s vital statistics. She also writes that “Black women in New York City are still more than 10 times as likely as white women to die in childbirth.” The article asks – and answers – this question: “Should health professionals be accountable not only for caring for individual black patients but also for fighting the racism — both institutional and interpersonal — that contributes to poor health in the first place? Should we work harder to ensure that black lives matter?”[24]

The article does not explicitly address healthcare in prisons and jails, or correctional healthcare providers, but the author cites as her inspiration another matter of the criminal legal system: police killings of unarmed Black people – with no legal sanctions – and the public uprisings that followed. Just as racism afflicts law enforcement in myriad ways in the community, it also underlies many of the healthcare deficiencies in our prisons and jails, which are disproportionately populated by people of color and poor people. DOCCS, the New York State Department of Health, and local jail and correctional health providers should view Dr. Bassett’s article as a wake-up call and reevaluate the ways in which race impacts the care that is needed, and that which is delivered, in their facilities. For example, Upstate prisons confine predominately people of color in the custody of predominately white security staff and this undoubtedly impacts access to care.

At a New York City Council hearing on violence in City jails last week, the new Commissioner of the Department of Correction, Cynthia Brann, described her agency’s new approach to people with mental illness, treating them as “patients” and not “inmates.” In fact, DOC supervisors regularly refer to our clients as packages, at best, or animals, expletives, or racial slurs.

Of course, the disparities and biases are not limited to matters of race, but intersect with other aspects of oppression, including sexual orientation and gender identity or expression. Our clients rely on transphobic correction officers to access medical appointments relating to hormone therapy. Likewise, medically-assisted treatment for drug addiction is stigmatized as somehow “less than” other forms of medical care, with different standards of access. Our state and city continue to treat non-conforming identities and substance use and abuse as pathological behaviors. On the contrary, the true sickness is our habitual use of inhumane and ineffective prisons and jails, which are governed through deprivation, humiliation, abuse and neglect.

In “A Plague of Prisons: The Epidemiology of Mass Incarceration in America,” Ernest Drucker reframes mass incarceration as an epidemic – one like any other widespread infectious disease – that exploded in the 1970’s through the 1990’s and onto today. Indeed, while it is critical to provide the highest quality of care to any and all people in state custody, it is also important to recognize that incarceration is both inherently pathogenic and, itself, a disease. That is why policymakers must also focus on decarceration – including by closing some of the most abusive facilities identified by the Correctional Association, such as Attica and Clinton, as well as Supermax facilities Upstate and Southport – and the promotion of quality community healthcare as you seek to reform and improve specific aspects of jail and prison healthcare.

BDS is immensely grateful to the Assembly for hosting this critical hearing and shining a spotlight this issue. Thank you for your time and consideration of our comments. We look forward to further discussing these and other issues that impact our clients. If you have any questions, please feel free to reach out to Jared Chausow, our Advocacy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] The Independent Commission on New York City Criminal Justice and Incarceration Reform, or “Lippman Commission,” estimated the annual price of locking a person in a New York City jail to be $247,000. Mr. Feratovic was detained there for 208 days.

[2] See, e.g., Binswinger, I., Nowels, C., Corsi, K., Glanz, J., Long, J., Booth, R., Steiner, J. (2012). ‘Return to drug use and overdose after release from prison: a qualitative study of risk and protective factors’, Addiction Science & Clinical Practice 7(1), p. 3.

[3] Selling, D., Lee, D., Solimo, A., Venters, H. (2015), ‘A Road Not Taken: Substance Abuse Programming in the New York City Jail System’, in: Journal of Correctional Health Care 21(1) pp. 7-11

[4] German Lopez, There’s a Highly Successful Treatment for Opioid Addiction. but Stigma Is Holding It Back., Vox, Oct. 18, 2017 at , https://www.vox.com/science-and-health/2017/7/20/15937896/medication-assisted-treatment-methadone-buprenorphine-naltrexone.

[5] See Goodnough, A., and Zernike, K., ‘Seizing on opioid crisis, a drug maker lobbies hard for its product’, The New York Times, 11 June 2017.

[6] See Venters, H. (2016), ‘A three dimensional action plan to raise the quality of care in US correctional health and promote alternatives to incarceration’, in: American Journal of Public Health, 106(4), pp. 613-614

[7] Beckman, A., Bilinski, A., Boyko, R., Camp, G., Wall, A.T., Lim J., Wang, E., Bruce, R.D., Gonsalves, G. (2016), ‘New Hepatitis C drugs are very costly and unavailable to many state prisoners’, in: Health Affairs 35(10) pp. 1893-1901

[8] Id., p. 1899

[9] NYS Comptroller Thomas P. DiNapoli (2017), ‘New York State’s Aging Prison Population’, The Office of Budget & Policy Analysis 2017, [online] (available at: http://osc.state.ny.us/reports/aging-inmates.pdf [accessed 20 October 2017])

 

[10] Venters, 2016.

[11] Id.

[12] Shalev, S. (2008), A sourcebook on solitary confinement. (London: Manheim Centre for Criminology, London School of Economics), p. 15.

[13] Haney, C. (2003) ‘Mental health issues in long-term solitary and “Supermax” confinement’, in: Crime & Delinquency, 49(1) pp. 133-136.

[14] Id.; Grassian, S. (1983), ‘Psychopathological effects of solitary confinement’, in: American Journal of Psychiatry, 140(11), p. 1452.

[15] Haney, 2003, p. 133; Grassian, 1983 p. 1453; Gilligan, J., Lee, B., (2013), ‘Report to the [New York City] Board of Corrections’, [online] (Available at http://solitarywatch.com/wp-content/uploads/2013/11/Gilligan-Report.-Final.pdf [accessed 11 August 2017]), p. 6.

[16] Venters, H., Kaba, F., Lewis, A., Glowa-Kollisch, S., Hadler, J., Lee, D., Alper, H., Selling, D., MacDonald, R., Solimo, A., Parsons, A. (2014), ‘Solitary confinement and risk of self-harm among jail inmates’, in: American Journal of Public Health, 104(3), p. 445.

[17] Statistics provided by DOCCS

[18] Gilligan and Lee, 2013, p. 6.

[19] The Liman Program, Yale Law School & of State Corr. Administrators, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (2015), https://law.yale.edu/system/files/area/center/liman/document/asca-liman_administrativesegregationreport.pdf.

[20] See United States National Commission on Correctional Health Care (2016), Position Statement: Solitary Confinement (Isolation), [online] (available at: http://www.ncchc.org/solitary-confinement [accessed 25 October 2017]).

[21] Disability Rights New York (2017), ‘Report and Recommendations Concerning Attica Correctional Facility’s Residential Mental Health Unit’, [online] (available at: http://new.drny.org/docs/reports/attica-rmhu-report-9-12-2017.pdf [accessed 24 October 2017])

[22] Raemisch, R., ‘Why we ended long term solitary confinement in Colorado’, The New York Times, 12 October 2017.

[23] Schwirtz, M., Winerip, M., and Gebeloff, R., ‘The Scourge of Racial Bias in New York State’s Prisons’, The New York Times, 3 December 2016.

[24] Mary T. Bassett, M.D., M.P.H., #BlackLivesMatter — a Challenge to the Medical and Public Health Communities, 2015 New Eng. J. Med. (2015), http://www.nejm.org/doi/full/10.1056/NEJMp1500529#t=article.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON JUVENILE JUSTICE HEARING ON REENTRY PROGRAMS FOR FORMERLY INCARCERATED YOUTH

TESTIMONY OF:

Rebecca Kinsella– Social Worker, Brooklyn Adolescent Representation Team

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Juvenile Justice

Hearing on Reentry Programs for Formerly Incarcerated Youth

October 26, 2017

Introduction

My name is Rebecca Kinsella and I am a youth social worker for Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 35,000 clients in Brooklyn every year. I thank the City Council Committee on Juvenile Justice and Chair Fernando Cabrera for the opportunity to testify today about the many ways that the City Council can augment, improve, and support reentry programs for formerly incarcerated youth.

Brooklyn Defender Services’ has a specialized adolescent unit, called the Brooklyn Adolescent Representation Team, or BART. Our team represents over two thousand adolescents ages 13-21 annually. My caseload includes adolescents detained at Crossroads and Horizons, ACS detention facilities in Brooklyn and the Bronx, as well as young people detained on Rikers Island.

Background

Incarceration is particularly harmful for children and adolescents and should be avoided at all costs.[1] That being said, in our experience, young people who are incarcerated in local detention facilities are better able to access reentry programs and support than those who are sent upstate.

Recently, Marcus, an 18-year-old client of mine, was released from Rikers Island after serving a sentence of one year. Marcus graduated high school before being sentenced, and did not want his time in jail to keep him from his aspirations of higher education. We knew, based on ample experience, that it was crucial for Marcus to apply to colleges while at Rikers to ensure that he would re-engage education in a timely manner. With our ongoing advocacy and support of Marcus during his incarceration, he left Rikers and entered into college courses.

Marcus’s case is an exception. Joaquin, a young client of mine was released from a juvenile detention facility upstate, put on a train to the City and told that his mom would be waiting for him on the other side. With no critical supports put in place by the upstate facility to help him reenter his community upon his return, Joaquin was shortly rearrested just two months later. Having been disengaged from his family for almost 2 years, Joaquin and his family struggled with re-unification and the necessary restructuring of his life for a successful re-entry. With in-home family counseling and a more structured educational and vocational plan, I believe that Joaquin could have avoided the behaviors and circumstances that ultimately led to his arrest.

Incarcerated youth do better when they can remain close to their homes and communities, where they have better access to familial support and programs to help them acclimate to normal life. According to the NYS Office of Children and Family Services website:

“Keeping youths closer to their families is a core principle of New York State’s juvenile justice program. The importance of locating youth in placement close to where they are from cannot be understated.  Not only does this allow families to more easily visit, but it gives them the ability to participate in the youth’s rehabilitation program which increases the likelihood of success for youth once they are released.”[2]

While visiting Rikers is consistently demeaning and dehumanizing for our clients’ families, and requires long hours of travel by public transit, visiting at an upstate facility is often impossible for them. It is no surprise, then, that youth suffer greater reentry difficulties when they return from upstate facilities when their connections with their families and communities are more likely to have been strained or severed.

There is much the City can do to improve reentry services for all youth, including youth who are never sent upstate.  First, the Council should advocate with city agencies and actors in the court system, including prosecutors and judges for alternative to incarceration programs to always be prioritized in cases involving adolescents. In cases where courts require detention, the City should support efforts to keep city youth close to their communities. Finally, it is crucial that formerly incarcerated youth returning to their communities are met with free and accessible resources to help them return to their families, schools, and neighborhoods.

Recommendations

  1. The City should improve access and increase funding to community-based programs for formerly incarcerated youth.

BDS has great relationships with several programs that provide many of our adolescent clients with reentry services.  For example, Exalt, the Brownsville Community Justice Center, Families Rising, The Door, and Fortune Society all have proven track records of working diligently with our clients to help them achieve their own personal goals.

BDS urges the Council to provide more funding for any such organization that bridges the gaps for kids returning home to their communities and wants to increase capacity. Such programs are crucial to meeting young peoples’ needs and providing services to this vulnerable population.

In our experience, youth mentoring programs are extremely effective. These programs involve mentoring of court-involved youth by individuals who themselves have been through the system.  It is critical that these programs be properly funded, including adequate compensation for the crucial advocacy mentors provide.[3]

BDS has also found great success for our clients who have enrolled in programs that engage teenagers along with their families, like Families Rising:

“Families Rising is a collaborative initiative between the New York Center for Juvenile Justice and the New York Foundling to provide evidence-based therapeutic services to teenagers who come into contact with New York’s adult criminal courts. These services provide families and caregivers with essential rehabilitative tools to comprehensively address the complex behavioral and mental health issues that may have initially led to the child’s involvement with the criminal justice system.”[4]

Though there are many great resources for our clients and other formerly incarcerated youth, there are many holes in services that are essential for our adolescent clients.

Many programs have eligibility restrictions that exclude some clients who need their services the most. For example, my aforementioned client, Joaquin, was found ineligible for crucial therapeutic services when he was first released from jail because he had no pending case. With expanded eligibility and funding, programs could better serve recently incarcerated youth at this most critical point and keep them from re-entering the criminal legal system.

For example, many incarcerated youth struggle with pursuing their education following release, particularly in re-enrollment and adjusting into the school environment. Some formerly incarcerated youth have aspirations of college but need assistance in determining their eligibility and applying for financial aid. The Council could provide funding to groups that do educational advocacy, including public defender offices.

In addition to programs serving youth’s educational needs, we see significant gaps in vocational services serving adolescents. The youth with whom we work are motivated to work and contribute monetarily to their homes. Unfortunately, very few have the experience necessary to find and secure stable work. Investment in vocational programs that offer adolescents paid internships and job readiness skills not only prepare youth for the future, but provide safe after-school activities in the community.

Finally, with the diversion of more youth aged 16-17 accused of misdemeanors to Family Court following the passage of Raise the Age, the City should ensure that successful programs that are offered in adult criminal court are also made available in family court. For example, after New York State failed to raise the age of criminal responsibility in prior years, New York City court administrators began to provide innovative alternative-to-incarceration programming for youth in criminal court. In Brooklyn, Brooklyn Justice Initiatives connects young people in our adolescent courts with programming through groups like Young New Yorkers, an art-based diversion and leadership program. We hope that innovative programming like this one will continue to be available to Brooklyn youth in family court.

  1. The City should expand funding for adolescent social work services for public defender offices.

Adolescent social workers in public defender offices go beyond the traditional role of social work at public defense offices, often maintaining contact with our clients during and after their incarceration. Our social work fills in the gaps that are not met by other service providers. By keeping in touch with our clients from the point of arraignment through the end of their incarceration and sometimes beyond, we have a better chance of ensuring they feel they have the support they need when they return. BDS’ adolescent social workers help our clients re-enroll in school, apply for college, find work, secure housing, and connect with services they need following their release. Increased capacity for specialized adolescent social work in defender offices could prevent more youth from slipping through the cracks.

Michael, a young client of mine, was awaiting disposition of his case while detained on Rikers Island. Due to my role as his social worker, I was able to identify an appropriate alternative to incarceration program that a judge ultimately found suitable to serve as a resolution to Michael’s case. Following Michael’s release, I was able to assist him in locating an appropriate education setting as well as connecting him to necessary mental health treatment that he was not receiving while incarcerated. Without this support, it is unlikely Michael would have made a smooth transition back to the community. Michael successfully completed his alternative to incarceration program after more than one year of participation, resulting in no criminal record and having acquired important skills to accelerate his growth and development.

  1. The City must provide more safe shelter space and respite centers for homeless and formerly incarcerated youth in their communities.

Key to successful reentry for formerly incarcerated youth is having a safe space to return to in their communities.

Public defenders in Brooklyn serve around 500 homeless 16- and 17-year-olds every year, the vast majority of whom are not being served by Runaway Homeless Youth (RHY) service providers because of the lack of beds in Brooklyn. About half of the youth are made homeless by the criminal legal system when the court issues an order of protection against the youth for 90 days after a criminal allegation involving a domestic disturbance, making it illegal for the young person to return home.

BDS submitted testimony in support of Intro. 1700-2017, Intro. 1699-2017, Intro. 1705-2017, and Intro. 1706-2017, which will expand shelter access, expand the length of stay, streamline, and raise the age for all runway and homeless youth.[5] BDS reaffirms its support for the passage of these bills, and urges the council to improve access to housing for homeless and formerly incarcerated youth by expanding the number of RHY beds in Brooklyn, the Bronx and other boroughs outside Manhattan.

We thank the City Council for your consideration of this important issue.

Questions?

If you have any questions, please feel free to reach out to Andrea Nieves, BDS Policy Team, 718-254-0700 ext. 387 or anieves@bds.org.

[1] Barry Holman & Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities, Justice Policy Institute (2006).

[2] NYS Office of Children and Family Services, Close to Home Initiative, available at http://ocfs.ny.gov/main/rehab/close_to_home/.

[3] See Urban Matters, “Life Lessons: The Difference Credible Messengers Make” http://www.centernyc.org/itm-credible-messengers.

[4] New York Center for Juvenile Justice, Families Rising, http://www.nycjj.org/families-rising/.

[5] A copy of our testimony is available on our website at http://bds.org/wp-content/uploads/2017.09.28-BDS-testimony-on-RHY-bills-FINAL.pdf.

BDS TESTIFIES BEFORE THE NYC COUNCIL ON VIOLENCE IN CITY JAILS

TESTIMONY OF:

Kelsey DeAvila – Jail Services Social Worker

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Fire and Criminal Justice Services

Oversight Hearing on Violence in City Jails

October 25, 2017

My name is Kelsey DeAvila; I am the Jail Services Social Worker at Brooklyn Defender Services. I would like to thank the Committee on Fire and Criminal Justice Services for convening this hearing on violence in New York City jails. BDS provides comprehensive public defense services to more than 30,000 people each year, thousands of whom are incarcerated in the city jail system either while fighting their cases or upon conviction of a Misdemeanor and sentenced to a year or less. BDS’ Jail Services Division provides supportive services and direct advocacy on behalf of our incarcerated clients.  This testimony draws on the experiences of our clients and staff in the jails. We also call the Committee’s attention to the Fourth Quarterly Report (“Report”) recently filed by the Independent Monitor in the Nunez case regarding the Department of Corrections’ (“DOC” or “Department”) efforts to reduce violence under the settlement reached in that case.

In any discussion about improving jail conditions, it is crucial to first acknowledge the vast number of people who simply should not be incarcerated in the first place. For example, many thousands of New Yorkers are needlessly detained each year because they are unable to immediately pay bail, resulting in short jail stays with devastating consequences. Individuals are separated from families and communities; risk loss of employment, benefits and housing; suffer interruptions in medical care; and endure chaotic and often violent stays in custody. Thousands more are detained for longer stretches because bail is set, either intentionally or neglectfully, in an amount and form their families could never afford. Meanwhile, high turnover in the jail population puts a strain on staff, housing and healthcare resources in the jails. Broken Windows policing and the widely-discredited Drug War needlessly sweep masses of people into the criminal legal system; of the 268,775 arrests in New York in 2016, more than 122,000 stemmed from allegations relating to fare evasion, drugs, petit larceny (often baby food, laundry detergent and other essentials), trespass (often related to shelter-seeking), graffiti, or sex work.  In addition to mitigating harm to individuals, ending unnecessary arrests and discriminatory bail practices that discriminate against poor New Yorkers will contribute to reducing violence and easing other management challenges.

Nevertheless, addressing endemic violence in New York City jails will take more than reducing population turnover and crowding. More broadly, the Department and city officials must act urgently to address the culture of violence which remains deeply entrenched among uniformed jail staff at all levels.

The Culture of Brutality Persists in NYC Jails

The Nunez Report details the same disturbing behavior routinely reported by our clients: Officers who “relish confrontation,” stoke conflict between incarcerated people, and resort to violence as a first response. Despite the Department’s efforts to train staff in de-escalation techniques, staff are reported to utilize a one-size-fits-all approach to force, unleashing violence far out of proportion to what is necessary to contain a situation. Incidents of real or perceived non-compliance which are minor or already under control result in individuals being thrown to the ground.

Claims that the behavior of incarcerated people justifies current rates of violent force are easily belied by the data.  According to the Nunez Report, during the monitoring period, uses of force to prevent harm declined by 78% and those in response to fights dropped by 18%.  Meanwhile, uses of force in response to “resisting restraints” doubled, and those responding to “refusal to comply” were up 35%.  Altogether, the Report finds that nearly a quarter of use of force incidents were avoidable – a third of those arising from unprofessional staff behavior.   In sum, rather than exercising patience, restraint and common sense, uniformed staff too often fuel conflict through belittling name-calling and provocation, then jump at the chance to use violence.

We are deeply troubled by frequent and persistent reports that staff use pepper spray indiscriminately and without provocation. BDS clients have reported several incidents which illuminate the problem.  In one instance, an officer flew into a rage during a verbal disagreement with our young client. Despite no physical threat to the officer or others, she took out her MK9 pepper spray. When our client fled, the officer unleashed the pepper spray as she chased him through the mess hall, dousing everyone else in the area. The excessive pepper spray triggered a severe asthma attack which left our client coughing up blood. He was taken to intake where he waited several hours before receiving medical care. The incident likely sent many bystanders to the clinic as well.

This story is but one among many.  I and other BDS staff members frequently take reports about entire housing units enshrouded in a fog of chemical agents. Staff’s lack of restraint with respect to the use of chemical agents is galling.  Just last week I witnessed officers on the bus jeering as their colleague regaled them with stories of emptying canisters of pepper spray on people – including one in which he “made a grown man cry.”

More challenging to quantify than staff use of force, but nevertheless disturbing, is that our clients frequently report that staff are complicit in, encourage, and facilitate gang violence to do their bidding. In one recent incident, an officer engaged our client in a verbal argument, ultimately threatening to place him in a unit housing rival gang members.  Making good on this threat, our client was later moved to a cell in the jail’s intake where he encountered approximately seven members of a rival gang. As planned, he was attacked and suffered two deep cuts on his face, requiring several stitches.

People in Rikers Are Subject to Daily Humiliations and Deprivation

Beyond the most serious cases of brutality, stemming the tide of violence in city jails requires addressing the myriad humiliations people in city jails endure on a daily basis. These structural and social cruelties contribute to an environment rife with tension.  For example, most young people are limited to visits devoid of meaningful physical contact – separated by a wide table and plexiglass barrier. Ostensibly a security measure, the enforced separation of young people from their mothers’ loving touch breeds deep resentment. To make matters worse, conversations during visits are often dominated by the humiliating ordeal visitors endure to get through “security procedures” prior to seeing their loved ones.

Other everyday cruelties include officers tightening handcuffs to the point that hands lose their feeling, then twisting the wrists to cause shooting pain while uttering threats of further violence. At GMDC, young people describe an area in intake known as the “forget about me cells” where people are left and ignored for hours without food or water, as a form of retaliation, punishment, or simple negligence. In isolation units and similar high-security units, people rely on officers for their most basic needs. When officers deprive people of toilet paper, food, showers, outdoor recreation and other necessities, people become desperate, and in their desperation, may act out – thereby deepening the cycle of violence and isolation.  People join gangs for survival and access to basic amenities. The list of daily humiliations is endless.

All agree that reducing violence among incarcerated people is a worthy aim. As a first step, it is paramount to address the ways staff practices fuel the broader culture of violence in city jails.  So long as humiliation remains a celebrated tactic and gangs are manipulated to control or intimidate, violence will likely remain unabated in New York City jails. Unfortunately, the Department’s investigation and promotion practices only reinforce the conclusion that uniformed staff are permitted to brutalize the people in their care with impunity.

Internal Investigators Help Cover-Up of Abuse

At the facility-level, supervisors routinely ignore evidence of collusion and decline to interview victims or witnesses of uses of force, opting instead to rubber-stamp the statements of officers they are tasked to oversee.  Inquiries by the Department’s Investigation Division also exhibit substantial deficiencies, and are plagued by severe delays.

Interviews with victims or witnesses of use of force regularly take place within earshot of other people and staff.  Uniformed staff are known to retaliate against people who report misconduct, both violently and through more subtle means, for example, denying access to commissary or visits. Fearing reprisals, many of our clients are unwilling to give full accounts of an incident without confidentiality.  When victims and witnesses choose to make statements despite the risk of retaliation, their accounts are too often discredited without justification.

The apparent consequence is an investigations process that fails to uncover staff misconduct or serves to justify it, rather than enforce accountability. As noted by the Nunez Monitor, 92% of investigations between January and June 2017 found no staff wrong-doing, despite clear objective evidence of much higher rates of unjustified force.  In rare cases that an investigation finds staff misconduct, discipline is delayed and largely ineffectual, except in certain high-profile cases.

DOC Supervisors Model Bad Behavior

A major shift in Department culture can only be engendered when supervisors and management respect the basic human dignity of the people in their care, demonstrate a baseline of professionalism, and ensure accountability among the rank and file.  At present, this is sadly far from the case. This challenge is of the Department’s own making. The long-standing and consistent failure to meaningfully investigate staff misconduct and bring those responsible to account has allowed many of the individuals responsible for that misconduct to advance into leadership roles.

BDS staff spend considerable time in the jails and are dismayed by the demeaning language and dehumanizing attitudes routinely on display among supervisors.  As a matter of course, people in department custody are almost never referred to as “people” – at best they are “packages” or “bodies,” frequently they are called “animals” and too often they are referred to only by expletives or racial epithets. Rather than setting an example of professionalism, supervisors routinely exchange gossip and insults about incarcerated people. During a jail tour last year, a BDS staff member witnessed a supervisor laughing enthusiastically as their subordinate recalled threatening to empty a canister of pepper spray into the open mouth of a person who was lying prone on the floor, handcuffed.

It is not uncommon to hear supervisors encourage cruelty, disrespect and violence toward incarcerated people. More disturbing, however, is the frequency with which supervisors themselves are responsible for unnecessarily escalating conflicts and encouraging their subordinates to resort to violent force quickly and excessively. Once an incident is underway, supervisors sometimes participate in the very acts of brutality they should intervene to prevent.

The Nunez Monitor documents one such incident in which a Deputy Warden ordered officers to use military-grade pepper spray on an individual who was restrained, facing a wall and not resisting.   Such misconduct on the part of supervisors sends a clear message to line staff that violence against incarcerated people is permissible and encouraged.

We urge the Department and city officials to closely review promotions, demand a baseline of professionalism and competence from supervisors, and strictly enforce accountability.  With even a semblance of adequate supervision, we believe some of the most egregious incidents could be avoided.  In the long-term, it is imperative that management and supervisory staff embrace and demonstrate respect for the dignity of the people in their custody. Similarly, the city must hold Department leadership accountable for policies and practices that continue to violate the human rights of people in New York City jails.

Thank you for your time and consideration of our comments. If you have any questions, please feel free to reach out to Jared Chausow, our Advocacy Specialist, at 718-254-0700 ext. 382 or jchausow@bds.org.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON TECHNOLOGY ON ALGORITHM TRANSPARENCY.

TESTIMONY OF:

Yung-Mi Lee

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Technology

Hearing on Intro 1696

October 16, 2017

My name is Yung-Mi Lee. I am a Supervising Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Technology, and in particular Chair James Vacca, for holding this hearing today on Int. 1696, which would establish basic transparency in New York City’s automated processing of data for the purposes of targeting services, imposing penalties, or policing.

BDS SUPPORTS Int. 1696

The arrival of the digital age in the criminal legal system has been heralded by technology entrepreneurs, law enforcement leaders, and some academics, but it presents a series of new threats to the liberty and well-being of our clients that warrant deeper investigation. However, many of these technological advances are deemed proprietary or otherwise kept secret by police, making true accountability all but impossible. At worst, such tools provide a veneer of color- and class-blind objectivity while exacerbating the racial and economic discrimination and other inequalities in law enforcement practices and criminal and civil penalties. From law enforcement’s use of facial recognition software that disproportionately misidentifies Black people to so-called gang databases and designations that indefinitely flag people for harsh surveillance or worse, based on who they stand beside in a Facebook photo, apparently with no way to be removed, there are numerous examples of technology reinforcing, rather than mitigating or eliminating, biases that afflict our society as a whole. Two key examples that I will focus on are the rise of pre-trial Risk Assessment Instruments (RAI’s) and so-called predictive policing. Int. 1696 will shine a necessary spotlight on these and other areas of the modern surveillance and punishment system.
RAI’s and Pre-Trial Detention

Across the United States, nearly a half a million people are detained pre-trial—legally presumed innocent but locked in a cage. The majority of these individuals are legally eligible for release on bail, but detained because courts set bail in an amount and form they cannot afford. Financial conditions of release are, on their face, discriminatory and amplify broader inequalities in society. While attempts at reform have come in cycles for the last several decades, the most onerous forms of money bail remain in use in most of the country. Meanwhile, multinational surety companies have profited from this mass misery through the financing of the bail bonds industry, which is banned in every country except the United States and the Philippines. Because the courts generally only accept bail in cash or commercial bail bond—as opposed to, for example, an unsecured bond—bail bond agents are often a family’s only hope for getting a loved one out of jail. These agents can charge exorbitant unrefundable fees, demand unlimited collateral and impose onerous conditions, all with no meaningful oversight by local, state, or federal regulators. The industry siphons billions of dollars from marginalized communities across the country while leaving the majority of people with bail set to suffer in jail.

Understandably, there is a demand for something—anything—different, but policymakers must be deliberate about reform. Specifically, the goal of bail reform must be to reduce pre-trial detention and eliminate racial and other disparities. The zeitgeist in bail reform is the promotion of RAI’s to drive decisions about pre-trial detention, but it is not clear this approach will help, rather than harm. RAIs purport to objectively and accurately predict one outcome or another. In reality, RAIs function as a proxy for a series of subjective, human decisions. People decide whether to attempt to measure risk of flight, risk of future criminality, risk of re-arrest, or some combination of the three. People decide what level of offense to attempt to predict, i.e. any offense or a serious offense. People decide which factors to consider in the assessment and how much weight to attribute to each factor in the overall risk score. People then decide what qualitative conclusions to draw from these risk scores, establishing benchmarks for low, medium, and high risks. Finally, judges decide what weight to give the risk assessment when issuing decisions regarding release, supervision, and predictive detention.

In practice, RAIs typically use a series of highly discriminatory metrics that provide little or no utility to seeing the future. Common factors include homelessness, employment status, school enrollment, age, family connections, prior convictions, and prior incarceration. RAI proprietors argue their tools are not discriminatory because they do not consider demographic information, but this analysis ignores the pre-existing sharp disparities in the aforementioned factors. A landmark ProPublica investigation of RAIs found one commonly used tool was more likely to falsely identify Black people as likely to commit a crime. The investigation also found this RAI to be only “somewhat more accurate than a coin flip” in determining a risk of re-offense, and “remarkably unreliable” in predicting violent crime.

RAIs come with a unique threat to liberty in New York State: a concurrent push to allow judges to make assumptions about dangerousness, using RAIs, in pre-trial detention decisions. Under current state law, judges may only consider a risk of flight, with certain exceptions. While RAIs can be used exclusively to measure this risk, many high-level policymakers, including Mayor de Blasio, are urging changes to the bail statute so that dangerousness may be assessed and considered as well. As such, the first order of business is to stop this rush toward dystopic preventive detention. There is ample evidence that even a few days in jail can be criminogenic; preventive detention is a counterproductive tool of public safety. Moreover, there is no guarantee that adding dangerousness to the statute would significantly reduce jail populations. Results across the country are mixed, and courts in New York City already have comparatively high rates of releasing people on their own recognizance.

In short, RAI’s, by their nature, bypass an individual’s right to due process and the individualized, case by case, analyses required of prosecutors, judges and defense attorneys.

The transparency in RAIs afforded by this legislation is critical for policymakers and the public to analyze their efficacy and fairness. Many such assessments are currently proprietary. Currently, the Mayor’s Office of Criminal Justice Services is engaged in a good-faith effort to improve its pre-trial RAI, and it is critical that it be fully transparent. Transparency requires the release of any and all data used to formulate any RAI.  Moreover, the public should have an opportunity to recommend changes before it is implemented.

Importantly, pre-trial detention may not meet the legal definition of a penalty. This legislation should be amended to explicitly include algorithms used to determine custodial detention, incarceration, civil commitment, and supervised release.

There are many better ways to incentivize pre-trial freedom and discourage pre-trial detention, including through expanded use of the unsecured appearance bonds that are already permitted by state. These alternatives must be pursued aggressively. BDS has testified before the Council about bail reform in the past and would be happy to further discuss the issue.

Predictive Policing

Predictive Policing uses algorithms and computer modeling to attempt to predict and prevent crime, including through targeted allocations of resources. In its grudging and incomplete responses to FOIL requests from the Brennan Center for Justice, the NYPD has acknowledge the use of a predictive policing system that was developed in-house as well as a prior purchase of Palantir, a commercial predictive policing product. With both systems, NYPD has stonewalled requests for transparency, citing either trade secrets or vague security concerns. There is a high likelihood that these systems disproportionately impact low-income people of color and other heavily policed groups, but refusing to disclose, for example, the information inputs and the possible or actual outputs, serves to shield the NYPD from scrutiny. Likewise, the public is prevented from evaluating the system’s efficacy and cost-effectiveness. Perhaps resources allocated to identifying a particular housing development and/or certain of its residents as likely sources of crime would be better spent identifying and fulfilling community needs like jobs, affordable and accessible public transit, and quality community-based mental health services.

Int. 1696 will open a window in predictive policing operations and allow us to better evaluate its safeguards against civil rights violations, utility and appropriateness.

The Limits of Transparency

BDS strongly supports the Council’s years-long efforts to establish more transparency in the criminal legal system, but we also recognize the limits of this approach. Ultimately, we as a democratic society must retain the ability to direct our law enforcement, not the reverse. Transparency is an important tool of community control, but it should not be mistaken for the endgame for policymakers. As public defenders, it is impossible for us to zealously protect our clients’ Constitutional rights without knowing, for example, whether the NYPD officers are parked outside their homes in an x-ray van and how they determined their targets; disclosure of this information is therefore critical but the Council should also explore outright prohibitions on certain domestic spying operations. Likewise, the Council or Comptroller could exert authority to block the purchase of improper and invasive technology used for profiling. Ultimately, the Council must regard law enforcement secrecy as a political tool, in addition to a public safety tool. Without transparency, those of us who urge a shift away from punishment and control toward community support are at an information disadvantage, but we know more than enough from lawsuits and police and civilian recordings to rein in the discriminatory and abusive practices of law enforcement and reinvest in communities.

Thank you for your time and consideration of our comments. If you have any questions, please feel free to reach out to Jared Chausow in our Policy and Advocacy Unit at 718-254-0700 ext. 382 or jchausow@bds.org.

BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON PUBLIC SAFETY

TESTIMONY OF:

Jared Chausow – Advocacy Specialist

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Hearing on Intro 1611, Intro 1636, Intro 1664, Intro 1712, Resolution 1660, two Preconsidered Intros and two Preconsidered Resolutions

October 16, 2017

My name is Jared Chausow. I am the Advocacy Specialist at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Public Safety, and in particular Chair Vanessa Gibson, for holding this hearing today on legislation and resolutions that relate to index crimes reporting (Int. 1611), Record of Arrest and Prosecution (RAP) sheet errors (Int. 1636), fare evasion arrests and civil summonses (Int. 1664), criminal case dispositions (Int. 1712), outstanding criminal warrants (T2017-6381), so-called gravity knives (Res. 1660), gun violence (T2017-6705) and gun regulation (T2017-6706).

BDS supports Int. 1636, Int. 1664, Int. 1712, T2017-6381, and Res. 1660 and offers recommendations to strengthen some of them below. We take no position on Int. 1611, T2017-6705, T2017-6704, and T2017-6706.

BDS SUPPORTS: Int. 1636 (Johnson) – Requiring the Mayor’s Office of Criminal Justice (MOCJ) to address erroneous criminal records and T2017-6381 – Requiring MOCJ to address outstanding criminal warrants.

According to a 2014 report by the Legal Action Center, The Problem of RAP Sheet Errors, at least 30% of RAP sheets contain at least one error and some contain as many as ten or more. This finding aligns with our observations. In 2015, our Re-Entry Unit launched a Criminal and Police Record Accuracy Project (CP-RAP) to clean-up RAP sheets upon referral. The most common errors we encounter include:

  • missing information about the disposition of cases, or voided or “hanging” arrests, which gives the mistaken impression that they are still open;
  • mistaken information about bench warrants, which can lead to unnecessary arrests and increased risk of having bail set;
  • information about old non-criminal violations and dismissals that should have been—but were not—sealed according to New York State law;
  • and various errors made when different City and State agencies fail to convey information accurately, which can lead to wrongful detention and even arrest by Immigration and Customs Enforcement.

Decades of neglect of RAP sheet accuracy is well known in the criminal justice system. One significant factor in the frequency of these errors is the immense size and scope of the record keeping required. According to the Legal Action Center report, New York State maintains RAP sheets for 7.1 million people, with information inputs from dozens of bureaucracies, each of which may use proprietary databases or even paper files. This information is reported to federal agencies as well which further exacerbates the extent of the impact of these data points. This is a massive undertaking, especially given the high stakes of the records, including lifelong job and housing discrimination, deportation, false arrest and imprisonment, and more. Until very recently, there were approximately 1.5 million open arrest warrants in New York City alone, though local District Attorneys agreed to wipe away nearly 700,000 of these thanks to the advocacy and leadership of Speaker Mark-Viverito. The agencies responsible for entering and maintaining arrest and case disposition data have grossly inadequate systems and no real-time quality control measures in place. But mostly, they do not have the will to fix the problems. Despite numerous efforts to work with DCJS, the agency responsible for NYSID sheets, advocates have been consistently rebuffed. Given the extensive damage that befalls people because of these errors, it is time for real change in this process.

Aggravating the problem of RAP sheet errors, the state court system sells many or most criminal records to countless loosely-regulated for-profit online vendors that provide “one-stop shopping” to employers, landlords and others. Each error or omission is therefore amplified on the internet. The non-governmental online vendors typically offer so-called “background checks” at a lower price than DCJS or OCA—e.g., approximately $33 at First Advantage compared to $62 at DCJS’ contractor MorphoTrust USA—and provide additional information like global records searches. Therefore, these commercial database searches may be the preferred option for most users. Representatives of DCJS have indicated to us that they do not specifically transmit the corrections we make on behalf our clients through CP-RAP to these private companies, instead arguing it is the companies’ obligation to make sure their records are accurate. In other words, nobody is ensuring accuracy and accountability in the vast majority of publicly accessible criminal records.

Based on our experience, it is likely that more errors are recorded, day by day, than fixed. Moreover, the problem of RAP sheet inaccuracies and incomplete entries had already been recognized as a concern by 1991, when the State enacted legislation to automatically seal eligible cases going forward to prevent paperwork lapses, and yet the errors continue to occur. I understand OCA is developing a new Uniform Case Management System that should automatically seal eligible cases that must remain open for a period, such as those that result in an Adjournment in Contemplation of Dismissal. In the meantime, court actors should devise a system to effectively and efficiently confirm sealing where appropriate. It is important to note that the federal database will not be automatically sealed. It is our understanding that thousands of cases that were resolved with a Disorderly Conduct plea in New York State are in a queue at the FBI, waiting to be manually sealed.

Int. 1636 would require MOCJ to serve as a clearinghouse for RAP sheet corrections, analyze the root causes of the errors, and propose solutions, with an annual report on actions taken pursuant to this law. T2017-6381 would require MOCJ to ensure NYPD warrants are consistent with OCA records, establish a means for people to rectify inaccurate warrants, and facilitate the reduction in outstanding criminal warrants. Together, these bills would finally place one agency in charge of wrangling many others to help protect our clients. We support their passage and enactment and thank lead sponsors Councilmember Johnson and Speaker Mark-Viverito.

Additional recommendations:

  • Every person should have free and easy access to their own criminal records, without having to receive an indigence waiver, so they can check for errors and advocate for themselves as needed. A City agency that has access to these records—other than law enforcement—should provide them free of charge.
  • The NYPD should be required to include a sunset clause with any fingerprints it sends to DCJS to prevent hanging and voided arrests from appearing on RAP sheets long-term; if the arrest does not lead to a court case within a given time period (e.g. 30 days), it should be purged.
  • The NYPD should be required to turn over documents needed to aid in clearing up old hanging or voided arrests within three days. Under the Fair Chance Act, employers must give applicants three days to respond to a finding related to a criminal history, and applicants must have a legitimate opportunity to prove that, for example, their records contain erroneous arrest information. Local District Attorneys should likewise be urged to turn over documents related to cases they declined to prosecute within three days.
  • The Council should call on the State to cease its sale of criminal records to third parties at least until it can guarantee that all of the information it provides is accurate and that all information that should be, or may later become, sealed is not disclosed.
  • The Council should call on DCJS to expeditiously comb through its records and remove all information that, as reported in the records, should be sealed pursuant to New York State law. People should not have to trek to courthouses and wait in line for a clerk to obtain a Certificate of Disposition that demonstrates exactly what is already in DCJS’ own records, which is the current protocol.
  • As MOCJ publicizes its role in correcting RAP sheets, it should also publicize new opportunities to seal certain old criminal convictions, pursuant to the State’s new Raise the Age law. BDS is currently promoting its own services to those seeking assistance with sealing through our community office, but we assume that most eligible New Yorkers are unaware of this new law.

BDS SUPPORTS: Int. 1664 (Lancman) – Requiring the NYPD to report on the number of arrests and summonses returnable to the Transit Adjudication Bureau for subway fare evasion.

This legislation will require reporting on fare evasion arrest locations and fare evasion summonses, both of which will aid policymakers and the public in evaluating NYPD practices. Ultimately, BDS and many others believe New York City should end the policing of poverty and invest the savings in making transit more affordable to low-income residents. We support the Fair Fares plan backed by the Riders Alliance, the Community Service Society, a majority of the Council, and many others.

BDS SUPPORTS: Int. 1712 (Lancman) – Requiring MOCJ to report on the charges and dispositions of criminal cases.

The quarterly and annual reports generated pursuant to this legislation will help to inform policymakers and public about our criminal legal system. Data is critical to making smart and necessary reforms to the system. We recommend this legislation be amended to require race and ethnicity reporting along with the charge and disposition data.

BDS SUPPORTS: Int. 1569-A (Gibson) – Establishing a Disorderly Behavior violation with reduced penalties.

BDS testified in support of this legislation in April of this year and continues to support it today.

BDS appreciates the City’s recent efforts to roll back Broken Windows policing and reduce arrest numbers and strongly urges more progress. This policy shift likely saved countless people from unnecessary immigration enforcement and other devastating consequences. Likewise, it is critical that this new non-criminal violation and civil offense not be enforced in addition to any existing summonses.

BDS SUPPORTS: Res. 1660 (Gibson) – Urging Governor Cuomo to sign into law A5667A/S4769A, in relation to gravity knives.

BDS strongly supports A5667A/S4769A and thanks Councilmember Gibson for introducing this important resolution. This bill simply clarifies the definition of illegal gravity knives to make clear that ordinary folding knives like box cutters, used peacefully, are tools, not weapons. These utility knives are commonly sold on-line and in hardware stores to workers and artisans, and only specially trained law enforcement officers are able, often only after several tries, to flick them open by exertion. Nevertheless, New Yorkers are regularly arrested and prosecuted for mere possession of these knives and subject to severe consequences under a vague statute that was intended to criminalize large switchblades.

Our criminal defense attorneys report that nearly every client arrested on this charge is carrying a knife for work. Often, they are maintenance workers, stock room attendants, or other types of laborers. Unfortunately, many cannot obtain verification of their employment because their work is unsteady or informal. The vast majority of BDS clients charged with the relevant offense are Black and/or Hispanic—approximately 86%. Case dispositions vary from client to client, but all are deeply impacted. They suffer the trauma of arrest and contact with the system, including overnight detention in a filthy holding cell and the humiliation of being churned through arraignments and, very often, allocution to a plea deal involving an admission of guilt. They can also lose their jobs and their children, and even face deportation because of these arrests. The criminalization of simple possession of work tools further poisons the relationship between law enforcement and the community and expands the dragnet of our criminal justice system, all without any public safety interest.

As the resolution eloquently states, police and prosecutors have never arrested or charged hardware store owners, such as Home Depot executives, for selling these knives and they continue to be regularly sold throughout the city. This unequal enforcement represents a two-tiered system of justice that both reflects and amplifies broader social inequality.

Client stories:

Mr. B was an 18 year-old freshman math major with a merit scholarship at Pace University when he was pulled over for having tinted windows. Peering inside the car, the officer found a folding knife that Mr. B, who worked at an ice skating rink, used to cut laces. Mr. B, who had no criminal history and zero arrests to date, was arrested and detained. His attorney was able to verify his work-related use of the knife and persuaded the District Attorney’s office to offer an adjournment in contemplation of dismissal (ACD) with immediate sealing to protect his scholarship. Nonetheless, untold numbers of online for-profit databases may maintain records indicating that he was arrested for “Criminal Possession Weapon-4th: Firearm/Weapon,” and Mr. B has since struggled to find employment, suspecting that employers are consulting these databases.

Mr. R had a fifteen year-old conviction for drug sales and had successfully completed parole. He had trouble getting jobs because of his criminal record, but was eventually able to get and maintain a job for a construction company. After police officers spotted a knife clip in his pocket, he was arrested and charged with possession of a gravity knife. Because of his earlier conviction and court history, the prosecutors were able to convince the judge to set a high bail and Mr. R was incarcerated at Rikers until he eventually plead guilty to the weapons charge just to get out of jail. By that point, he had lost his job.

J, a 22 year-old, was employed in his father’s auto repair shop when he was stopped for a traffic violation. Police officers conducted an illegal search and found a knife under his seat. J told the officers that he used the knife to open boxes at work, but he was arrested and charged with possession of a gravity knife, anyway. One of our attorneys met with the arresting officer and the prosecutor in the case to view the knife. After a few failed attempts, the officer was able to flick open the knife, but only with a significant exertion of force. J had never even tried, much less succeeded, in opening the knife this way. (This is very common in gravity knife cases.) Yet prosecutors refused to outright dismiss the case, and J was sentenced to three full days of community service.

Mr. S, a 33 year-old maintenance worker at Brightside Academy, an early childhood education center, was arrested and charged with gravity knife possession and low-level marijuana possession. Prosecutors insisted on Misdemeanors for both charges and Mr. S lost his job after the school received a letter informing them that he was charged with “possessing a weapon/firearm.” After repeated requests to the Kings County District Attorney’s office, we were able to test the knife and found it to be a locking folding knife and not a gravity knife. Prosecutors then agreed to dismiss the case, and the client successfully sued for malicious prosecution and unlawful seizure, but his employer would not rehire him.

All of the BDS clients cited above were listed as Black and/or “Hispanic” on their arrest reports.

BDS offers comments on T2017-6706 (Mark-Viverito) – Resolution calling on Congress and the President to oppose the “Concealed Carry Reciprocity Act of 2017.”

While BDS takes no formal position on this resolution, we note for the record that we have represented clients entangled in the disparate gun regulations that exist between jurisdictions. For example, a veteran from Colorado was arrested in Brooklyn for possession of a handgun that was legally licensed in his home state. He had been unaware of the comparatively strict gun laws in this city. Fortunately, our Veterans Court defense specialist was able to secure a case disposition without any jail time. However, others arrested for this offense are generally processed in the Brooklyn Gun Court and often face far harsher penalties. In fact, when Mayor de Blasio announced this new court in the beginning of 2016, his press release explicitly cited a dramatic increase in average jail sentences that occurred in a previous iteration of a Gun Court—from 90 days to one year. Indeed, we have observed that this court is designed to increase the pressure on our clients to accept harsh plea deals, rather than administer individualized justice. It is unclear what public safety interest is gained by incarcerating people on Rikers Island for an additional nine months.

The Council should also be aware that our attorneys have successfully gotten a number of gun possession cases dismissed based on evidence that NYPD officers had planted the guns, yet prosecutors continue to rely upon these same officers in subsequent cases.[1],[2] (I have attached to this testimony one article cited above for your consideration.) Meanwhile, several NYPD officers in charge of gun licensing have been charged by federal prosecutors for allegedly soliciting and accepting bribes, including “cash payments, paid vacations, food and liquor, the services of [sex workers], and free guns.” They are entitled to a presumption of innocence, but the Council should monitor the case.

Thank you for your time and consideration of our comments. If you have any questions, please feel free to reach out to me at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] Stephanie Clifford, In Brooklyn Gun Cases, Suspicion Turns to the Police, The New York Times, Dec. 11, 2014 at https://www.nytimes.com/2014/12/12/nyregion/gun-arrests-with-2-things-in-common-the-officers-and-unidentified-informers.html.

[2] Nick Pinto, The Incredibles: Judges Said These Cops Can’t Be Trusted, so Why Does the D.A. Rely on Them?, The Village Voice, Nov. 1, 2016 at https://www.villagevoice.com/2016/11/01/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-d-a-rely-on-them/.

BDS TESTIFIES BEFORE THE NYC COUNCIL ON SAFE AND ACCESSIBLE SHELTERS FOR HOMELESS YOUTH

­­

TESTIMONY OF:

Elia Johnson – Brooklyn Adolescent Representation Team

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on General Welfare

and the Committee on Youth Services

Oversight Hearing on

Safe and Accessible Shelters for Homeless Youth

and

Intros 1619, 1699, 1700, 1705 & 1706

September 28, 2017

My name is Elia Johnson and I am an adolescent social worker with Brooklyn Defender Services (BDS). Our organization provides innovative, multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent Brooklyn residents every year. I thank the New York City Council Committee on General Welfare and the Committee on Youth Services, and in particular Chairpersons Corey Johnson and Stephen Levin, for the opportunity to testify on issues related to shelter services for Runaway and Homeless Youth (RHY) in New York City.

As a member of the Brooklyn Adolescent Representation Team, I currently work with 50 BDS adolescent clients, ages 14-24. The Brooklyn Adolescent Representation team is made up of dedicated attorneys and social workers and represents over two thousand adolescents ages 13-24 annually. We are grateful for the opportunity to speak today about the ways in which that the Department of Youth and Community Development can better serve Runaway and Homeless Youth.

Homeless Youth and the Criminal Legal System

Public defenders in Brooklyn serve around 500 homeless 16- and 17-year-olds every year, a vast majority of whom are not being served by RHY providers because of the lack of services in Brooklyn. About half of the youth are made homeless by the criminal justice system when the court issues an order of protection against the youth for 90 days after a criminal allegation involving a domestic disturbance, making it illegal for the young person to return home.[1] The other half disclose to their defense team that they are living with friends or significant others because of a breakdown of the relationship with their parents.

Furthermore, RHY providers report that they already serve over 1000 youth per year (at facilities almost exclusively located in Manhattan) from Brooklyn. We estimate that Kings County would need at least 300 crisis shelter beds to ensure that no Brooklyn youth was forced to sleep on the street, sleep on the train, couch surf, or trade sex for shelter.

Instead of providing shelter and services for homeless youth, the City too often relies on the criminal legal system to handle this population’s complex needs, at a heavy cost to taxpayers. A majority of youth surveyed by The Door in 2013 reported that they had been arrested. The cost of a single misdemeanor arrest in NYC is $1750. This covers all police time including overtime pay for arresting officers and supervisors, all pre-arraignment jail costs, and all court expenses.[2] Detaining a person at Rikers Island for a year costs the City $208,500 per year.[3] This figure does not take into account the significant extra costs related to supervision and programming for adolescents incarcerated on Rikers. In contrast, RHY providers received $35,886/youth crisis shelter bed in 2015. The actual cost to RHY providers is far higher than this 2015 reimbursement figure.

Youth Homelessness in New York City – Case Example

Eric[4] was arrested after an incident in his home with his half-sister. Eric, a young man who had been in foster care since the age of 3, had only recently reunited with his father. Unfortunately, as is common with children who have experienced significant trauma, Eric had a hard time adjusting to his new home, and the conflict in the home led to his arrest. Eric was arrested and arraigned in Kings County Criminal Court at night. The Judge issued a Full Order of Protection on behalf of his half-sister. He was released from arraignments at midnight with a metro card and nowhere to go.

Eric was legally barred from returning to the only home he knew in New York City. He had no other family. Eric left Kings County Criminal Court and wondered around downtown Brooklyn before he got on the subway. A policeman found Eric sleeping on the subway and took him to the ACS Children’s Center. Eric spent a few days at the Children’s Center before he was placed in ACS custody at Children’s Village, which is in Dobbs Ferry, New York about 30 minutes outside of New York City. Due to the order of protection Eric cannot return home for the foreseeable future and will remain in ACS custody until he ages out or signs himself out.

Current RHY Capacity

There is a severe need for shelter options for adolescents in New York City. The New York City Department of Youth and Community Development runs a range of services for Runaway and Homeless Youth. Unfortunately, DYCD only has two crisis shelters that serve all youth under 21, Covenant House and Safe Horizon Streetworks Overnight, both in Manhattan. Covenant House, near Times Square, is the largest and has about 200 shelter beds and another 140 spots for longer-term residential stays. The shelter serves youth age 16-21 and turns away about 75 people a month.[5] Safe Horizon, located in Harlem, offers only 24 beds. There are other limited crisis shelter options for LGBTQ youth, victims of sex trafficking, and pregnant and parenting young mothers.[6] Unfortunately, the majority of our clients are teenage boys of color who do not meet these criteria. Drop-in centers exist in all of the five boroughs but do not provide short-term emergency housing to accommodate youth like Eric.

Right now, too many of our clients live in the streets, “couch surf” or sleep on the floors or couches of friends, neighbors or even strangers. Indeed, homeless youth are more likely to be arrested, engage in criminal activity to meet their survival needs, or engage in unsafe sexual relationships or the commercial sex trade because they need a place to sleep. A 2013 study by Covenant House and Fordham University found that 1 in 4 of the surveyed homeless youth became a victim of sex trafficking or was forced to provide sex for survival needs, such as food or a place to sleep. Of these victims, about half reported that the number one reason they had been drawn into commercial sexual activity was because they did not have a safe place to sleep.

The City must do better to provide safe shelter space for youth in the communities that they live in so that they do not end up in these situations. Manhattan, which houses the only two youth crisis shelters in New York City is not safely accessible for youth in Brooklyn, Queens, Staten Island or the Bronx. We applaud members of the Committee on General Welfare and the Committee on Youth Services for the steps they have taken with each of the bills before the Council today, which will go a long way in improving access to housing for homeless youth. We also issue further recommendations for actions that the Council can take on this issue.

We support each of the following bills:

Intro. 1700-2017 – Expand Appropriate Shelter Access for all Runaway and Homeless Youth: We believe that by appropriately tracking the number of RHY in New York City DHS and DYCD will have a better understanding of the true need for shelter services and will therefore take action to allocate funding for youth shelters in each of the five boroughs that are easily accessible by public transportation. The bill also adds a new section to the NYC codes requiring DYCD to provide shelter services to all runaway and homeless youth who request such shelter from the department. This reform is long overdue. It is devastating for service providers like us who literally have nowhere to send our clients in need of a safe place to sleep. Mandating that DYCD find a way to house these youth is a critical first step in ensuring that DYCD providers have sufficient capacity to serve runaway and homeless youth.

Intro. 1699-2017 – Expand the Length of Stay for Runaway and Homeless Youth We support extending the amount of time that young people can stay in shelters to 60 or 120 days, as it often takes at least that long to obtain more permanent housing. We believe that this will allow adolescents to remain in a safe place until a more long-term option can be reached instead of being forced to leave after 30 days, which is the current policy at Covenant House. Often this forces young people to return to unsafe situations or the streets.

Intro. 1705-2017 – Streamline DHS Intake/Assessment for Runaway and Homeless Youth: We believe that streamlining the process for intake and assessment from short-term shelters into DHS facilities is critical to ensuring that young people are able to access long-term and permanent housing. This will decrease the revolving door of young people entering short-term crisis centers and then leaving after the allocated time period with no long-term or permanent solution.

Intro. 1706-2017 – Raise the Age for Runaway and Homeless Youth: As a social worker who works with adolescents, I hear every day from my adolescent clients that they do not want to go into shelters with adults because they do not feel safe in those spaces. Young people under the age of 25 are fundamentally different from adults, as proven by numerous studies on brain development. By raising the age to 24, adolescents in their early twenties will now have a safe place to sleep with people their own age.

Additional Recommendations

  1. Support the opening of RHY crisis shelters in all five boroughs.

Kings County alone needs at least 300 crisis shelter beds to ensure that no Brooklyn youth is forced to sleep on the street, sleep on the train, couch surf, or trade sex for shelter. Right now there are only a handful of crisis shelter beds in Brooklyn and they are only for youth who identify as LGBTQ. The vast majority of runaway and homeless youth must seek crisis shelter beds in Manhattan where they are too often turned away for lack of beds. Runaway and homeless youth have been made homeless by failures of the education system, juvenile and adult justice systems, the foster care system, and adults who have failed to properly care for them. The City can and must address the youth homelessness crisis by opening youth crisis shelters in Brooklyn, the Bronx, Staten Island and Queens.

  1. The City must provide reimbursement for capital investments to RHY service providers to allow them to open crisis shelters in the outer boroughs

We have been told that RFY providers are unable to open new crisis shelters in boroughs like Brooklyn because the City currently does not fund capital investments. The City should assist RHY providers to locate and secure bed space in Brooklyn as landlords are often reluctant to lease to shelter providers. Even better, the City could renovate existing City buildings such as old hospitals or schools for this purpose and then issue RFP contracts for use of these spaces. Additionally, DYCD’s RFPs should include funding for capital expenditures, a current barrier to instituting new beds under the existing DYCD funding scheme. Finally, the RFP should reflect the actual cost of running a crisis shelter bed, as opposed to the current inadequate reimbursement rate. This number must include the provision of wraparound support services for youth housed at the crisis shelter. The availability of high-quality services is critical to the ability of New York’s homeless youth to break the cycle of homelessness and court involvement.

Conclusion

We applaud the City Council for taking these important steps to provide housing for adolescents in New York City. We encourage the City Council to further ensure that everything is being done for RHY in New York City by establishing and funding crisis shelter housing for youth in every borough of the City by incorporating capital investments costs into the RFP process.

Thank you for your time and consideration of this important issue. If you have any questions, please feel free to reach out to Andrea Nieves, BDS Policy Team, 718-254-0700 ext. 387 or anieves@bds.org.

[1] As a matter of practice in Brooklyn, prosecutors regularly ask for and judges regularly issue a full order of protection in cases involving “domestic violence”, even though these are normal disputes between teenagers and their parents. Full Orders of Protection, in effect, usually render our young clients homeless. In contrast, in New Jersey, when EMT’s respond to a domestic disturbance involving a youth, they take the youth to the Emergency Room rather than arresting them. If NYC were to adopt this approach 250 youth in Brooklyn every year would avoid court-mandated homelessness.

[2] Police Reform Organizing Project, Over $410 Million Per Year: The Human and Economic Cost of Broken Windows Policing in NYC (2014), http://www.policereformorganizingproject.org/wp-content/uploads/2012/09/Over410MillionaYear_docx_.pdf.

[3] New York City Independent Budget Office, 2013.

[4] Name changed to protect his identity.

[5] Mireya Navarro, “Housing homeless youth poses challenge for Mayor Bill de Blasio,” NY Times, March 27, 2015, available at http://www.nytimes.com/2015/03/28/nyregion/housing-homeless-youth-poses-challenge-for-mayor-de-blasio.html.

[6] Ali Forney has 32 beds for youth who identify as LGBTQ in Brooklyn, Covenant House has 22 mother and child beds at West 52nd St in Manhattan, and Inwood House in the Bronx has 8 beds for young women.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON AGING ABOUT POST-INCARCERATION SERVICES FOR OLDER ADULTS REENTERING SOCIETY

TESTIMONY OF:

James Royall – Reentry Specialist/Advocate

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Aging

September 20, 2017

Good Morning, my name is James Royall and I am the Reentry Specialist at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in nearly 40,000 cases in Brooklyn every year. I want to thank the New York City Council and, in particular, the Committee on Aging and Chairperson Chin for the opportunity to testify today about BDS’s support for legislation to create a temporary task force on post-incarceration services for older adults reentering society. I also want to express special gratitude to Councilmember Dromm, the lead sponsor of this legislation, who has dedicated himself to the rights and well-being of incarcerated people for many years.

Reentry is the process of leaving a correctional facility, or any state or local custody, and returning to society. All formerly incarcerated men and women experience reentry, irrespective of their manner of release or level of supervision. If the reentry process is successful, there are benefits in terms of improved public safety and the long-term reintegration of the formerly incarcerated. Reintegration outcomes include increased participation in social institutions such as the labor force, families, communities, schools and religious organizations. Increased participation in these social institutions is what strengthens our society.

BDS Supports Int. No. 1616 – a Local Law in relation to establishing a temporary task force on post-conviction reentry for older adults (Dromm).

BDS strongly supports the establishment of a task force for older adults returning to society and offers recommendations to strengthen this legislation. New York State’s prison population is aging. More than 10,100 people aged 50 or older are currently incarcerated in New York, according to the latest available data. Even as the total prison population in this state has gradually decreased, the number of individuals in this older adult category has jumped by 46 percent.[1] Advocates like the Release Aging People in Prison (RAPP) Campaign, Parole Justice New York, Citizen Action and the Challenging Incarceration collective are pushing Governor Cuomo and the Legislature to adopt reforms that would allow for many incarcerated older adults, who have the lowest recidivism rates, to be released. Led by this proposed task force, New York City can be an ally in the parole reform effort by formally supporting these proposed reforms and committing to have the resources in place to help these individuals successfully return.

Currently, there is a broad slate of programs and services for older New Yorkers across the city, and a growing network of re-entry resources, but very little overlap between the two. Older adults endure unique hardships in prisons and jails, as the facilities and staff are not adequately equipped to support them. Crucially, family members and others in the home and community who would traditionally serve as caretakers are prevented from doing so. Likewise, few community-based organizations that serve older New Yorkers specialize in meeting the needs of returning citizens. It is my hope that this task force will hold a microscope to these gaps and galvanize policymakers to fill them.

Recommended Bill Amendments

To make this task force as meaningful and effective as possible, BDS recommends four amendments to this legislation.

  1. First, we believe that the task force should remain in place for at least five years to monitor implementation of the recommendations in its forthcoming report and hold policymakers accountable with additional progress reports.
  2. The legislation calls for one member of the task force to be formerly incarcerated. BDS believes that at least half of the members should have close personal experience with incarceration, either through their own incarceration or that of a family member. The agency officials and academic sought for the task force in the current bill language have a variety of valuable expertise, but nobody understands the problems of re-entry, and how to fix them, better than those who have lived through it.
  3. The task force should also include at least one provider of affordable and/or supportive housing. Our clients’ experiences affirm the reality that stable housing is key to successful reentry, yet “58% of older people (1,699) were homeless upon release and nearly 1,200 went directly to a homeless shelter,” according to RAPP. Such unstable housing can disrupt medication and therapy regimes, impose additional unnecessary restrictions like curfews, and add to the overall volatility and stress of being poor in New York City and subject to widespread discrimination in employment and elsewhere.
  4. Lastly, the bill should require that the task force explore the unique challenges of re-entry for people convicted of sex offenses and make recommendations to the state regarding its movement and residency restrictions for this population. While there are substantial political challenges associated with assisting this population with re-entry, public safety and fairness demand reconsideration of years of policy that ultimately is not linked with positive outcomes or increased public safety.   The restrictions included in the Sexual Assault Reform Act (SARA) generally prohibit offenders from “knowingly enter[ing]” any area within 1000 feet of schools or other facilities primarily used by people under the age of 18.   However, ample research has disproven the underlying assumptions that drive these restrictions. In short, they do nothing to prevent sex offenses from occurring and in fact can increase risks of re-offending by preventing affected individuals from obtaining stable housing and employment or accessing treatment and even mandatory parole office appointments.[2],[3] This has a direct impact on New York City government, which is required by court order to provide shelter but often fails to do so while complying with these restrictions.  Likewise, the state prison system requires a home address to release an individual to parole, but often fails to identify a viable and compliant one. The shocking result is that people in state prisons are sometimes held beyond the end of their sentence until a SARA-complying residence is found.[4] BDS has successfully litigated to remove SARA restrictions for one client, but broader reform is urgently needed.[5] Re-entry is not about the crime of conviction, which is the one thing that cannot be changed, but rather the rehabilitation and re-integration of the individual. This task force should seek to improve outcomes for all returning older adults.

Additional Recommendations

Once the task force is established, BDS will have additional recommendations for members. One area in need of urgent reform that we will highlight, and that is critical to our clients and their families, is prison visiting. Maintaining tight support networks while incarcerated can be both extremely difficult and extremely beneficial for people on both sides of the prison walls. The biggest challenge to maintaining these networks is a direct result of choices made by policymakers, namely the placement of prisons in regions of the state that are generally inaccessible to the communities most people in prison call home. New York State used to mitigate this problem by offering free visiting buses to families and they should be restored as soon as possible. Legislation to do just that, A.7016/S.5693, is pending in Albany and Governor Cuomo and the Legislature should include it in the state budget this coming session. Substantial research has shown that consistent visitation is one of the primary drivers of rehabilitation and a protection against recidivism.[6] It is well worth the investment.

Thank you for your consideration of my comments. I look forward to continuing to work with the Council to support the creation of this task force and ensure that it is effective.

Questions?

Please feel free to contact BDS’ Advocacy Specialist Jared Chausow at 718-254-0700 ext. 382 or jchausow@bds.org.

[1] NYS Comptroller Thomas P. DiNapoli, New York State’s Aging Prison Population (The Office of Budget & Policy Analysis 2017), http://osc.state.ny.us/reports/aging-inmates.pdf (last visited Sept. 19, 2017).

[2] See A ‘Frightening’ Myth About Sex Offenders, by David Feige in New York Times Op-Docs, available at https://www.nytimes.com/video/opinion/100000005415081/a-frightening-myth-about-sex-offenders.html?mcubz=0 (last visited Sept. 18, 2017).

[3] See DCJS Website, “Myths and Facts: Current Research on Managing Sex Offenders,” available at http://www.criminaljustice.ny.gov/nsor/som_mythsandfacts.htm (last visited Apr. 1, 2014).

[4] Christie Thompson, For Some Prisoners, Finishing Their Sentences Doesn’t Mean They Get Out, The Marshall Project, May 24, 2016 at , https://www.themarshallproject.org/2016/05/24/for-some-prisoners-finishing-their-sentences-doesn-t-mean-they-get-out.

[5] Andrew Keshner, Judge Finds State Limits on Sex Offender Moves Illegal, N.Y. L.J., Oct. 6, 2014 at , http://www.newyorklawjournal.com/id=1202672385488/Judge-Finds-State-Limits-on-Sex-Offender-Moves-Illegal.

[6] Minn. Dept of Corr., Effects of Prison Visitation on Offender Recidivism (2011), http://www.doc.state.mn.us/pages/files/large-files/Publications/11-11MNPrisonVisitationStudy.pdf.

 

BDS TESTIFIES BEFORE NYC COUNCIL ON BEST PRACTICES FOR NYC AGENCIES, COURTS, AND LAW ENFORCEMENT AUTHORIZED TO CERTIFY IMMIGRANT VICTIMS FOR U AND T VISAS

TESTIMONY OF:

Sophie Dalsimer – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Oversight Hearing on

Best Practices for NYC Agencies, Courts, and Law Enforcement Authorized to Certify Immigrant Victims for U and T Visas

September 13, 2017

Introduction

My name is Sophie Dalsimer. I am a practicing immigration attorney with a mental health specialization at Brooklyn Defender Services (BDS) on the New York Immigrant Family Unity Project (NYIFUP) team. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for 40,000 clients in Brooklyn every year.

I thank the City Council for the opportunity to testify about the NYPD U Visa certification process. I have chosen to focus my remarks on NYPD policy surrounding U visa certification because that is the city agency from which BDS most frequently requests certification.

Since our immigration practice began more than eight years ago, BDS has counseled, advised or represented more than 7,500 immigrant clients.  In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics.

New York City can and should do more to protect our immigrant community members from increasing immigration enforcement efforts at the federal level. Many of our clients have been victims of crimes and are eligible for U Visas. Yet despite recent changes to the NYPD process for certification of U Visas and T Visas, the NYPD continues to delay decisions in certification and to deny certification because of a client’s criminal history. In short, these policies harm immigrant New Yorkers and their families and communities and should be reformed.

Client Stories

The following stories illustrate the critical need for timely processing of U Visa certifications by the NYPD, regardless of a person’s criminal history. The names are pseudonyms to protect the identity of our clients.

Ms. Archer

Ms. Archer is a 45-year-old mother from Jamaica raising two daughters in the Canarsie neighborhood of Brooklyn. In the early 2000s, Ms. Archer lived with a partner who repeatedly physically and emotionally abused her. Ms. Archer endured this abuse without realizing that she could seek help from law enforcement. Her abuser threatened her that if she went to the police, she would be deported. It was not until Ms. Archer finally confided in a close friend that she came to understand that she could seek help from law enforcement without fear of deportation and separation from her young children.  The next time her partner became violent, Ms. Archer ran out of the home with her daughter and went straight to her local precinct. She provided a full report to police who noted Ms. Archer’s physical injuries. The fear of law enforcement was enough to cause her abuser to flee and he was never apprehended even though Ms. Archer continued to inform police every time he attempted to make contact with her. Eventually, Ms. Archer learned that her abuser was back in Jamaica and retaliating against her family there, including burning down her sister’s home. He threatened to kill Ms. Archer if she ever returned to Jamaica. As a single mother and survivor of a domestic violence who is also illiterate, Ms. Archer struggled to provide for her family. She made the mistake of engaging in shoplifting and was arrested on four occasions, leading to two convictions and two disorderly conduct violations. Ms. Archer deeply regrets her actions.

In late September 2016, NYIFUP requested U Visa certification from the NYPD on behalf of Ms. Archer, who was detained in immigration custody and facing deportation to Jamaica.  The request was denied in December 2016, citing “significant criminal history” as the basis for denial. An appeal was filed in February 2017 with additional supporting documentation. The appeal was denied in late May 2017, this time referencing “extensive criminal history.”

Ultimately, Ms. Archer was able to avoid deportation based on the threats from her former abusive partner who continues to reside in Jamaica. Ms. Archer is now home with her daughters in Brooklyn and is for the first time connected with a literacy program and counseling for domestic violence survivors. However, for survivors of domestic violence who were never married to their abusers, such as Ms. Archer, a U visa is the only path to lawful permanent resident status based on their abuser.  In this case, Ms. Archer was able to remain in the United States, but she does not have the permanent status like that which she might have obtained through a U visa.

Mr. Hernandez

Mr. Hernandez fled violence in his native El Salvador and came to the U.S. at age 16. In 2011, he was brutally assaulted outside a restaurant in East Elmhurst, Queens. His attackers beat him with a steel bat. He woke up in the hospital after undergoing emergency surgery to relieve pressure from blood clotting around his brain. While hospitalized he received occupational and physical therapy, wore a protective helmet and had another surgery to replace fractured bone in his skull with a metal plate.

Mr. Hernandez cooperated with law enforcement following his assault by speaking with NYPD detectives, viewing photo arrays of suspects, and riding along with officers in an effort to identify the assailants. Following his assault, Mr. Hernandez also developed epilepsy and experienced chronic pain and cognitive decline. He described no longer feeling like the same person, becoming slower and easily confused.

It was during this time period, subsequent to his victimization and hospitalization, that Mr. Hernandez was arrested twice and convicted of possession of stolen property and unauthorized use of a vehicle, both non-violent misdemeanor offenses. He has little recollection of the circumstances that led to his arrests due to his brain injury. Mr. Hernandez was transferred from criminal custody to immigration custody and was assigned  a NYIFUP attorney in August 2016.

After gathering relevant records, the NYIFUP attorney filed a request for U certification with NYPD on behalf of Mr. Hernandez in mid-October 2016. In late December 2016, NYPD denied Mr. Hernandez’s request citing “extensive criminal history” as the basis for the denial. An appeal was filed in late January 2017.   A decision on the appeal was not reached until late July 2017, over 6 months later, when NYPD agreed to certify a U visa for Mr. Hernandez.

Mr. Hernandez remains detained and is fighting removal to El Salvador where he fears he will die without access to his anti-seizure medications. The delay in the NYPD’s issuing of a U certification has contributed to his lengthy time in immigration detention

  • Expediting NYPD Responses for Detained Immigrants

In 2016 the NYPD adopted new regulations on “Requesting Certifications for U Nonimmigrant Status (U Certification). These regulations require NYPD to respond to requests for certification within 45 days and respond to appeals to certification decisions within 90 days.

Prior to the passage of this rule, we often would go months and months without receiving a response from NYPD about our requests for certification. This created a great deal of uncertainty in the process for all parties involved, including the courts, judges, attorneys and immigrants. Since the passage of the rule, we have seen NYPD comply with the initial request for certification in a timely manner, but our appeals linger for months before a response.

Expedited responses are particularly critical for our clients detained by Immigration and Customs Enforcement (ICE). Immigration detainees generally appear before an immigration judge every 6-8 weeks. Judges expect to hear regular updates from attorneys about the status of the client’s case. The court process will run much more efficiently if we can inform judges that we have requested a U visa certification and that the NYPD will respond within a specific time period. Additionally, judges are likely to release a detainee on bond once they receive a U visa certification from a law enforcement agency. The Department can play an important role in limiting unnecessary and harmful detention by responding promptly to requests for certification and appeals from detained immigrants, in particular.

Recommendations:

a. NYPD should create a streamlined process for immigration detainees that would allow their cases to take priority over other person’s requesting certification.

Petitioners to the Department should submit in their letter requesting certification whether they are (a) a detained immigrant in removal proceedings, (b) a non-detained immigrant in removal proceedings, or (c) a person making an affirmative application to U.S. Citizenship and Immigration Services (USCIS) (i.e. a person not currently facing deportation).  This would allow the Department to allocate resources in the most efficient manner possible.

b. NYPD should provide on its website a contact phone number and email address for a point person at the Department on this issue.

This lack of information makes it nearly impossible for attorneys and immigration court personnel to inquire about the status of an immigrant’s u-visa request for certification. As noted above, this would be enormously helpful to backlogged immigration courts (who could schedule court dates for after the date when the NYPD expects to respond to the request) and immigrants themselves who are making difficult decisions about whether or not to continue fighting deportation.

Reasons for Denials

While the NYPD now issues denial letters with a checkbox for reasons for denials, we still have little to no information about why our clients are being denied U visas.

In both Ms. Archer and Mr. Hernandez’s cases, we were given no further indication in either the initial denial or the appeal as to why their specific criminal history warranted a denial. It would be helpful for the NYPD to articulate whether it was the gravity of the convictions, the quantity of convictions, the recentness of conviction, or the level of assistance that the petitioner provided in the case in which they assisted the NYPD.

Recommendation:

 c. NYPD should not deny U visa certifications based on a person’s criminal history.

It is more appropriate and efficient to allow the Department of Homeland Security to determine when denial of a U visa is appropriate based on the applicant’s criminal record, rather than refusing to issue law enforcement certifications due to criminal convictions.

The instructions for the law enforcement certification (Form I-918, Supplement B) state: “You should use Form I-918, Supplement B, to certify that an individual submitting a Form I-918, Petition for U Nonimmigrant Status, is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that activity.” The law enforcement certification form does not request information concerning the applicant’s criminal record, and the instructions do not request that the certifying agency consider the applicant’s criminal record when determining whether to issue a certification.

This is likely because a U visa applicant’s criminal record, if one exists, will always be carefully scrutinized by the Department of Homeland Security, U.S. Citizenship and Immigration Services, before a decision is made about whether to grant a U visa. As part of the U visa application, the applicant is required to disclose all arrests and submit documentation proving the outcome of each arrest. U visa applications are routinely denied due to the applicants’ failure to submit all required criminal documentation, or due to the nature and/or extent of the applicant’s criminal record.

For these reasons, we encourage the Council to urge the NYPD not to deny certification requests based on the applicant’s criminal record.

Conclusion

The legacy of broken windows policing is that low-income people of color in certain New York City neighborhoods are disproportionately targeted by police for arrest for conduct that would not result in criminal convictions for others. Frustratingly, our clients who are victims and who worked with law enforcement to report and investigate crimes are being denied U Visas because of their criminal histories. At the same time that the Council is funding NYIFUP to defend detained people facing deportation, the NYPD is effectively precluding people with even minimal criminal records from even applying for this critical form of relief with the Department of Homeland Security.

We call upon the City Council to work with immigrant communities, service providers and other stakeholders to urge the NYPD to change this policy so that New Yorkers who are the victims of crime can apply for the U visas for which they are eligible under federal law.

If you have any questions about my testimony, please feel free to reach out to me at 718-254-0700 ext. 315 or sdalsimer@bds.org.

BDS TESTIFIES IN FRONT OF NYC COUNCIL ON NYPD RESPONSE TO PERSONS IN MENTAL HEALTH CRISIS

TESTIMONY OF:

Joyce Kendrick – Supervising Attorney

Criminal Defense Practice – Mental Health Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Public Safety

Jointly with the

Committee on Mental Health, Developmental Disability, Alcoholism, Substance Abuse and Disability Services

Oversight Hearing on

NYPD’s Responses to Persons in Mental Health Crisis

September 6, 2017

Introduction

My name is Joyce Kendrick and I am the Supervising Attorney of the Criminal Defense Practice – Mental Health Unit at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent people in Brooklyn every year. The BDS Mental Health Unit provides specialized representation to criminal defense clients in the Mental Health Treatment Court and in competency evaluation proceedings.

Over the last twenty years, I have represented thousands of clients struggling with mental health challenges in misdemeanor and felony cases in Brooklyn courts. Sadly, the NYPD continues to use unlawful and sometimes lethal force against people in mental health crises on a regular basis rather than de-escalating the situation.

I am grateful to be here to give voice to the experience of my clients and my fellow practitioners and provide recommendations for critical reform in how the NYPD responds to people in crisis.

Introduction

A few years ago, I represented Natasha[1], a woman in her early thirties who was shot in the stomach by police and severely wounded after her friend called the police asking for assistance. The friend told the 911 operator that Natasha was breaking things in her apartment. She added that Natasha was off her medication and in crisis but did not have a weapon. When they arrived at the scene, officers told Natasha to lie down on the floor. When she did not comply with their orders because of her illness, they allegedly sprayed her with pepper spray on her. They subsequently shot her in the stomach with a gun. No weapon was recovered from the scene but Natasha was charged with felony attempted assault of an officer and put under arrest as the paramedics wheeled her away. I met Natasha at her hospital bed where she was on a ventilator being treated for life-threatening injuries. The charges were subsequently reduced to a misdemeanor, making Natasha eligible for Mental Health Treatment Court. All of this could have been avoided if a crisis intervention team had responded to the call, de-escalated the situation, and connected Natasha with the critical services that she needed to stabilize and get back on her feet.

We are here today because Natasha’s story is not an isolated incident. The recent deaths of Dwayne Jeune in Brooklyn and Debora Danner in the Bronx illustrate the urgent need for a shift in thinking about how the NYPD responds to a person in crisis. Without a doubt, the NYPD must do better in training all officers in crisis intervention training.[2] But there is much more that can and should be done to prevent unnecessary and harmful police violence, and the Council need look no further than two recent mayoral initiatives and their reports and recommendations.

In 2011, my office served on Mayor Bloomberg’s Steering Committee of the Citywide Justice and Mental Health Initiative. The Initiative sought to develop and implement data-driven strategies to improve the City’s response to people with mental illnesses who are involved in the adult criminal justice system. BDS also served on Mayor de Blasio’s Task Force on Behavioral Health and the Criminal Justice System which convened in 2014 and issued a report that year.

Both mayoral initiatives studied closely these issues and proposed solutions to divert people with mental illness from the criminal justice system and to improve behavior health services for court-involved people.[3] The 2014 Report indicated that the City intended to spend $130 million to reduce unnecessary arrests and incarceration for people with mental illness. Earlier this year the Mayor announced that two new drop-off diversion centers will open in 2018 to provide short-term stabilizing services for 2,400 New Yorkers per year.

Despite this blueprint to reform, the City has been slow to change. The January 2017 NYC Department of Investigation Report and Analyses on the NYPD’s Crisis Intervention Team Initiative illustrated what those of us on the ground already know: that the NYPD are ill-equipped to respond to mental health crises and they continue to respond, all too frequently, with unlawful or lethal force.[4]

To this date, we have yet to see the proposals articulated in our work on these mayoral initiatives implemented in any meaningful way. Brooklyn Defender Services calls on the Council to work with the Mayor and his administration to implement some of these reforms, particularly those indicated below.

Problems and Solutions

Problem 1: Families and caretakers are scared to call the police during a mental health crisis for fear of escalation.

Families and caretakers of people living with mental illness often feel that they have nowhere to turn when their loved ones are in the midst of a mental health crisis. They recognize the sad reality that in New York City, calling 911 to report a mental health crisis may lead to someone being shot by police.

Debora Danner, the woman tragically killed by police in the Bronx, wrote in an essay that she feared for her life.[5] Sadly, her worst fears were realized when she was shot dead by a policeman last October.

The City Council must work with the Mayor’s Office and the NYPD to change the public’s perception by changing the way that the NYPD respond to mental health crises.

Problem 2: NYPD continue to arrest and District Attorneys continue to prosecute people with mental illness rather than diverting this vulnerable population out of the criminal justice system altogether.

As the Supervisor of BDS’s mental health unit, I only represent people with severe mental illness. The fact that my entire unit exists speaks to the failure of the City to end the unnecessary arrest of people in crisis – the stated goal of the 2014 Behavioral Health Task Force.

Problem 3: People with mental health issues are often homeless or housing insecure. Their families and service providers struggle to provide them with the care and support that they need to stabilize.

The 2014 Report called on the NYC Department of Homeless Services to create 267 permanent housing slots, with supportive services, including mental health and substance use services. Homelessness and housing insecurity prevent people from getting the treatment they need to manage their mental illness.

Currently, hospitals will often hold people unlawfully, saying that they cannot release people to the streets. Yet after being held for a period of time, they are inevitably sent back to the streets because there are not enough beds anywhere in the City for people with severe mental illness.[6] The City must do better to increase the amount of supportive housing to meet the needs of New Yorkers in crisis.

Conclusion

The work has already been done to identify solutions to police violence against people with mental illness. But implementing these solutions requires political will. I look forward to working with the Council and the Mayor’s Office to put into place these reforms to stop the unnecessary arrest and deaths of New Yorkers in crisis.

Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 119) or jkendrick@bds.org.

[1] Name has been changed to protect her confidentiality.

[2] The New York Times reported this week that “more than 5,600 of the 36,000 uniformed police officers in the city had received the training so far.” The Department stated that they are focused “on providing crisis intervention training to lieutenants, sergeants and certain neighborhood-based officers, which is expected to be completed in 2018.” Ashley Southall, In Shooting of Mentally Ill Man, Officer Followed Protocols, Police Say, N.Y. Times, Aug. 3, 2017.

[3] See Improving Outcomes for People with Mental Illnesses Involved with New York City’s Criminal Court and Correction Systems (New York, NY: Justice Center, December 2012), available at http://www.nyc.gov/html/doc/downloads/pdf/press/FINAL_NYC_Report_12_22_2012.pdf and Mayor’s Task Force on Behavioral Health and the Criminal Justice System Action Plan (New York, NY: City of New York, 2014), available at http://www1.nyc.gov/assets/criminaljustice/downloads/pdfs/annual-report-complete.pdf

[4] NYC Department of Investigation, Office of the Inspector General for the NYPD, Putting Training into Practice: A Review of NYPD’s Approach to Handling Interactions with People in Mental Crisis (January 2017), available at http://www1.nyc.gov/assets/doi/reports/pdf/2017/2017-01-19-OIGNYPDCIT-Report.pdf.

[5] Debora Danner, Living with Schizophrenia, N.Y. Times, Oct. 19, 2016, available at https://www.nytimes.com/interactive/2016/10/19/nyregion/document-Living-With-Schizophrenia-by-Deborah-Danner.html?_r=0.

[6] See Benjamin Mueller, Public Hospitals Treat Greater Share of Mental Health Patients, N.Y. Times, Aug. 22, 2017, available at https://www.nytimes.com/2017/08/22/nyregion/new-york-mental-health-hospitals.html?mcubz=1.

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON IMMIGRATION HEARING ON SUPPORTING NEW YORK CITY’S DREAMERS AND “DACA-MENTED YOUTH

Lindsey Buller – BIA Accredited Representative

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Hearing on

Supporting New York City’s DREAMers and “DACA-mented Youth

&

Resolution 1484-2017

June 19, 2017

Introduction

My name is Lindsey Buller. I am a Board of Immigration Appeals Accredited Representative for the Youth and Communities Project at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. The Immigrant Youth and Communities Project (YCP) has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings.  Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense. I thank the City Council Committee on Immigration for the opportunity to testify today about BDS’s support for Resolution 1484-2017 and the challenges that our DACA youth clients face in accessing education and supporting their families.

BDS’s Provision of DACA Services

Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1,500 immigration matters across a full spectrum of services. Our immigration practice is composed of 17 full-time immigration attorneys, two law graduates, five paralegals accredited by the Board of Immigration Appeals, one full-time and one part time social worker, two legal assistants and two Immigrant Justice Corp Legal Fellows representing more than 1,000 immigrant New Yorkers every year. We are a Board of Immigration Appeals-recognized legal service provider.

BDS recently completed a contract with the Division of Youth and Community Development (DYCD) to provide DACA services.[1] Through that contract we established ourselves as a well-known DACA provider in Brooklyn, and we continue to receive DACA and other immigration referrals from community-based organizations and literacy providers, as well as from former DACA clients referring their friends and family members to us. While many New Yorkers with “simple” expanded DACA cases can be helped by community based organizations and programs like Action NYC, we stand ready to help those with cases made more complicated by interactions with the criminal justice system and/or immigration enforcement.

Indeed, BDS and other public defender offices like ours are in a unique position to provide complex immigration legal services for clients who may not otherwise seek immigration assistance but come to us by way of the criminal and family court systems.

To give you an example, BDS’s Padilla practice advises BDS clients facing criminal charges on the ramifications of any plea or conviction on their immigration status.[2] When our Padilla attorneys screen clients we frequently identify family members of our clients who are eligible for DACA.  Consequently, even if the clients who we represent in our criminal defense/family defense cases are ineligible for DACA themselves (either because of a pending case, past criminal history or because they already have status), we are able to flag for clients that their family members are eligible and may call our office for an intake.  Other times, once we start speaking with the client about his or her immigration status, the client will ask if they can send their family members to us for help, too. Thus, through our robust Padilla representation, BDS attorneys and BIA Accredited Representatives earn the trust of our clients who may then actually confide in us to help their family members come out of the shadows and apply for DACA.

Current Climate for Potential DACA Applicants

Since the new administration took office in January, we have had to be far more cautious about submitting DACA applications, especially for young people who have had contact with the criminal justice system.  We were happy to hear the news just this past Friday that DACA is apparently safe, at least for the moment.[3] We hope to see more qualified individuals interested in applying for the program.

Until recently, we had a pretty steady stream of referrals from adult education programs funded by the city. Students would be identified by their teachers as being possibly DACA eligible and referred to us for legal assistance. Recently, however, we have noticed a bit of a downtick in these types of referrals.  This may also be attributable to the general chill within immigrant communities after the presidential election.

BDS DACA Client Story

Sophia is a 19-year-old young woman from Mexico who has been living in the U.S. since she was 9 years old.  She submitted a DACA application with the assistance of an unqualified tax preparer and was denied.  Fortunately I picked up her case through the Youth and Communities Project and we were able to submit a second application on her behalf, which was approved just before she graduated from high school.

Sophia was an exemplary student in the New York City public school system.  A letter of support from her high school social studies teacher states: “While many of our American-born students may take their education for granted, Sophia does not.  They reality of her circumstances does not allow for this because she knows she has the most to gain from the American education system, but also, the most to lose if she is not able to continue her studies.”

Sophia just finished her first year at Guttman Community College in Manhattan and hopes to transfer to John Jay or Hunter College.  She is pursuing an Associate’s degree in Liberal arts & Humanities.  While this is a very positive development for Sophia, her lack of immigration status means she is ineligible for financial aid. In her words, “Scholarships are hard to get, which makes it ten times harder for me since many require community service, and I already work 3-4 days a week. I am a full time student so it is very challenging. My parents have been saving money and I am enrolled in payment plans in order to pay the tuition. I work in order to buy books, use the money for tuition and any other expenses that come across.”

Sophia is representative of many of our young clients who suddenly find themselves the only members of their family with employment authorization.  They struggle to balance the desire to help support their families financially with their desire to pursue higher education.  Young people in New York should not be forced into the role of primary breadwinners for their families, and we encourage City Council to do everything you can to help support students like Sophia who want nothing more than to pursue their dreams in this country.

Resolution 1484-2017

Sophia’s story, and that of dozens of other BDS clients, exemplify why the City Council should adopt Resolution 1484-2017 calling on the state and federal government to extend protections for undocumented youth by passing the New York State DREAM Act of 2017 at the state level, as well as the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act of 2017 at the federal level.

New York City does not set federal immigration policy or determine statewide funding for higher education. However, the City Council can use its moral authority as a sanctuary city to call for improved opportunities for all New York residents, no matter where they were born. We will all be stronger and safer if our young people have the opportunity to work and go to school. We strongly urge you to support this resolution to send a powerful message to the state and federal legislatures that New York City believes in the strength and possibility of our immigrant communities.

Questions?

Please feel free to contact me at lbuller@bds.org or 718-254-0700 ext. 309.

[1] It is our understanding that future RFPs related to DACA/DAPA services will be made through the Mayor’s Office of Immigration Affairs and/or Action NYC.

[2] In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. See Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[3] See, e.g., Michael D. Shear & Vivian Yee, ‘Dreamers’ to Stay in U.S. for Now, but Long-Term Fate is Unclear, N.Y. Times, June 16, 2017, available at https://www.nytimes.com/2017/06/16/us/politics/trump-will-allow-dreamers-to-stay-in-us-reversing-campaign-promise.html?_r=0.

ANDREA SAENZ SUBMITS WRITTEN TESTIMONY TO THE NEW YORK CITY COUNCIL EXECUTIVE BUDGET HEARING ABOUT THE NEW YORK IMMIGRANT FAMILY UNITY PROJECT (NYIFUP)

TESTIMONY OF:

Andrea Sáenz – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES

Presented before
The New York City Council
Executive Budget Hearing
May 25, 2017

I. Introduction

My name is Andrea Sáenz. I am the supervising attorney of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. I thank the City Council for this opportunity to submit testimony about the Mayor’s Office’s proposed changes to the NYIFUP program.

The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. NYIFUP’s mandate of universal representation is the model upon which all other detained deportation representation programs in the nation are based. I strongly urge the Council and the Mayor’s Office to maintain the current parameters of the program and increase funding so that we can continue to provide universal representation to the rising numbers of immigrants who are being arrested and detained as a result of President Trump’s enforcement priorities. NYIFUP is a profound example of this City’s commitment to immigrant New Yorkers. Any changes to the existing model will be a dramatic step back from the values of due process for all that , by virtue of creating an infrastructure of accountability for prosecutors and judges, have powerfully exposed the injustice of immigration detention and rapid deportation.

II. Background on NYIFUP

   a. The impetus for the creation of NYIFUP

Despite facing the significant possibility of permanent exile from the United States, immigrants in deportation proceedings are not constitutionally entitled to a lawyer if they are unable to afford one. As a result, most immigrants across the country facing deportation are unrepresented. This leads to people being deported who have a right to remain in the country.

Prior to the creation of NYIFUP, only 33% of detained immigrants in New York City had counsel at the time their cases were completed. In contrast, nearly 80% of non-detained immigrants had representation. A 2011 study found that of New York City immigrants who were unrepresented and detained, only 3% obtained successful outcomes, as compared to the majority of respondents who were represented and non-detained who received successful outcomes in 74% of cases.

New York City recognized the injustice of the lack of counsel for detained immigrants and took the historic step of funding free lawyers for poor detained immigrants in removal proceedings. The New York Immigrant Family Unity Project was never simply about the people detained, but was created to strengthen families and communities, as the program’s name suggests. As the Vera Institute of Justice notes, between 2005 and 2010, more than 7,000 U.S.-citizen children in New York City lost a parent to deportation. In addition to the financial hardship caused by the loss of a primary breadwinner, these children have been shown to suffer significant emotional and psychological effects. The legal representation provided by NYIFUP supports New York’s vibrant immigrant community by reducing unnecessary detention and unjust deportation of individuals who have strong ties to their communities.

   b. How NYIFUP works today and the program’s successes

BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 700 people in deportation proceedings. The improved outcomes for detained people represented by NYIFUP attorneys have far exceeded initial expectations: as of December 2015, 52% of pilot clients have been reunited with their families. During the pilot assessment period, NYIFUP attorneys won 71 percent of their trials. NYIFUP is projected to increase the percentage of immigrants who will win the right to remain in the United States by 1,000 percent, compared with prior success rates for detained, unrepresented immigrants.

NYIFUP providers staff intake days at the Varick Street Immigration Court (New York City’s detained docket) 2-3 times per week, seeing all individuals who are appearing for the first time before the court. The providers do a one-page income assessment to determine whether a person qualifies for NYIFUP representation. People who can afford their own attorneys or who already have an attorney are not provided a NYIFUP attorney. The vast majority of detained people who appear at intake qualify for a NYIFUP attorney based on their indigency.

NYIFUP currently represents any detained immigrant who appears at the Varick Street courthouse and meets the income requirements. Judges led the way in calling for the creation of NYIFUP, both to limit injustice and ensure that people with lawful claims to remain in this country were able to do so, and also to increase court efficiency. The goal of the program was never to exclude people from representation, but rather to recognize that if everyone is represented, the system functions more efficiently and justly.

Some of the people that NYIFUP represents resided in Long Island or Westchester County prior to their arrest by ICE, but they are not excluded from representation under the NYIFUP model because the goal was always to promote universal representation for all individuals detained and facing deportation in New York City. Governor Cuomo decided to replicate the NYIFUP model when he set aside $4 million in the FY2018 state budget to ensure that detained New Yorkers in all upstate immigration courts will be eligible to receive legal counsel during deportation proceedings. The state model is also based on venue, rather than client residence, and will cover all individuals detained and facing deportation in four upstate immigration courts. By ensuring that people are not excluded from NYIFUP because of geographic considerations, with the addition of the FY18 funding from the state legislature, New York will be the first state in the nation to ensure that all people who are detained and facing deportation in any immigration court in New York State have a lawyer to help them assert and defend their rights. Brooklyn Defender Services calls upon the Council to maintain the current parameters of the program to ensure that all people whose cases are heard in New York City receive due process.

   c. NYIFUP currently does not discriminate against people if they have a criminal record

People are not excluded from NYIFUP representation because of a criminal record. Indeed, from the outset, NYIFUP contracts were given to immigration attorneys within public defender offices because the function is similar and because NYIFUP providers’ expertise in criminal law improves the quality of representation in cases where crim-immigration issues are central. City Council recognized that people with criminal records were the most likely to be detained; the most likely to be deported without legal representation; and the least likely to obtain representation from organizations that pick and choose clients, in part because people with criminal records often have complex defenses in a deportation case. The City recognized that public defenders are best situated to assess the veracity and significance of a charge and to challenge or appeal the charge or conviction if they find it was unlawful or improper.

The whole point of a universal representation system is to ensure that anyone who may have the chance to stay with their family is given the full chance to litigate that right. It also reflects the very American value that even if a person does not have a defense, they deserve someone in their corner to advise them and give them a voice in the proceedings.

NYIFUP has found great success in representing New Yorkers, no matter a person’s criminal record. Over the past three and a half years, we have helped multiple U.S. citizens avoid wrongful deportation, prevented torture victims from being returned to their home countries where they would face certain death, and prevented deportations based on crimes that never actually happened. Some examples of clients who may have been denied representation based on a criminal history carve-out, but who had extremely compelling cases, are here:

Christopher A U.S. Citizen Released After Months of Zealous Representation.
Christopher left his home country as a young boy because he was afraid for his life and came to the US to find his father, a U.S. citizen who worked on military ships. Christopher struggled with homelessness and spent time in jail. In 2016, he was detained by ICE, devastating his U.S. citizen wife who depended on him financially and emotionally. His NYIFUP attorney realized that under the complex case law on citizenship, Christopher had derived citizenship when his father became a U.S. citizen. After months of factual development, his attorney won a contested evidentiary hearing about key facts in his childhood which allowed her to then file a complete motion to terminate his case on account of his U.S. citizenship. Days after this filing, ICE released Christopher from detention, allowing him to finish his case while working and supporting his family. He would never have known the law he needed to fight his case without an attorney by his side.

Karam Safe from Torture and Restarting His Life.
Karam is an older man who has lived in the United States as a green card holder since he was five years old. He grew up in a deeply homophobic neighborhood and culture, ashamed of his identity as a closeted gay man. Between this challenge, his learning disabilities, his depression, and his father’s abandonment, Karam developed a substance abuse problem and picked up several felony convictions. After being released from prison, he was arrested by ICE. In NYIFUP intake, Karam told the attorney meekly, “It’s OK, I know you’re not going to take my case.” NYIFUP counsel told him we would take his case, and after hard work building a strong record, Karam won Convention Against Torture protection based on the torture or death he would face as a gay man with his specific limitations if deported to his home country. He is now a full-time caretaker for his elderly mother who is fighting cancer, and has a positive outlook on himself that he never had before.

Marco A Young New Yorker Nearly Deported for a Turnstile Jump That Didn’t Happen.
Marco is a permanent resident with cognitive limitations. He had early struggles as a teenager that led to him being convicted of felony offenses, although he received youthful offender status on those. ICE placed him in deportation proceedings. Since the law does not allow ICE to deport Marco based on youthful offender cases, they charged him as subject to deportation for a single turnstile jumping conviction from when he was 16. While he was unrepresented, Marco was actually ordered deported on this charge. His case was later re-opened, and subsequently, Marco’s lawyer realized that Marco’s criminal records were wrong, and that this case was a mere disorderly conduct violation, not a turnstile jumping. ICE counsel refused to correct their mistake, and Marco’s attorney obtained new certified dispositions and filed a written motion to terminate his case. The immigration judge agreed and terminated the case, and Marco no longer faces deportation as a result of simple errors in his records.

As these examples show, a person’s criminal record, even if they have been convicted of serious felonies, does not preclude someone from relief from deportation under our immigration laws. Yet none of our clients would have been able to make these complex legal claims on their own without the assistance of an experienced deportation defense attorney. By not limiting who has a right to counsel, NYIFUP currently ensures that people are entitled to stay in the U.S. with their families may do so. Those who do not have a legal path to remain here are assured that they had qualified counsel review their case and provide them and their families with information about their legal options as they navigate one of the most difficult decisions of their life, to accept an order of deportation.

III. Increasing Immigration Enforcement

The NYIFUP Coalition jointly requests $12,000,000 to fully fund the New York Immigrant Family Unity Project in FY2018 to ensure that every detained New Yorker has legal representation when facing deportation.

a. Rising caseloads

Immigration arrests are up 40% nationwide, as ICE ramps up enforcement efforts since President Trump took office. This figure is consistent with what we have been seeing on the ground at intake. Not only have caseloads been particularly heavy this fiscal year, but the Varick Street Court began running initial appearance dockets three times a week instead of two times a week in May, which will cause an increase in intake of up to 50% over previous intake levels. Indeed, we have had to make the difficult decision to stop picking up cases at intake in the month of June because we have already exceeded out caseloads targets as determined by the City for FY17. This means that when detained people appear in immigration court for the first time after May 25th, we will be unable to take their cases because we are over the contractual maximum. During this hiatus from intake, NYIFUP attorneys will continue to go to Varick to do Know Your Rights presentation, provide individual advisals, and request adjournments, but will not pick up new cases. Unless the City provides more money for FY18 to meet the increased need, we will not be able to tell these people that we will be able to take their cases at a later date. The need for City support of NYIFUP has never been more acute.

To make matters worse, not only are we seeing more cases, but we see that ICE has changed their policies in the courtroom, making it more difficult for us to obtain the kinds of favorable outcomes that we received last year.

   b. Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. From February to mid-March, we did not have an asylum seeker released from ICE custody for a period of nearly seven weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. Other immigration legal service providers across the country also report that ICE has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge. Since March, we have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

   c. ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is a secure juvenile detention facility. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release.

   d. Arrests in the courthouses

Our immigration clients, like our criminal defense clients, are scared to go to immigration court. ICE agents now roam the hallways at 26 Federal Plaza and we have observed ICE agents arresting people in the courts. This was uncommon in recent years. For example, BDS represents a client who was re-detained by ICE when he appeared for an immigration court date last year. How can we adequately counsel our clients about the importance of attending their immigration court appearances to fight against deportation when they face the threat of coercive immigration detention every time they enter the courthouse doors? Once detained, people depend on NYIFUP to represent them to help them challenge their detention.

   e. ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to OSUP check-ins, but we simply do not have the capacity to meet the need and quell the well-founded fears of our clients and threats of detention and deportation.

   f. In the Community

       i. Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press.

       ii. Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their U.S. citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are crisis and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

IV. The Mayor’s Office’s Proposed Changes to NYIFUP

At the Executive Budget Hearing on May 11, 2017, the Mayor’s Office of Immigrant Affairs testified that the Mayor intends to allocate $16 million to immigration legal services, with an as yet undetermined amount to be earmarked for deportation defense. They also indicated that the Mayor’s plan would exclude people who have any of the 170 criminal convictions listed in the City detainer law from representation under any baselined city funding, and potentially exclude people who are not New York City residents.

We are deeply concerned about the Mayor’s proposal to limit NYIFUP’s universal representation model and deny certain categories of people the right to an attorney. It is morally wrong to allow any person who is detained in New York City immigration courts to be excluded from representation. Once we start picking and choosing who will get an attorney, we have unequivocally altered the fundamental purpose of NYIFUP, which is to provide everyone with a chance to make their case to the court that is deciding their fate.

   a. The types of convictions the Mayor has used to exclude our fellow residents from representation are not necessarily serious or recent

The list of 170 excludable offenses is a very broad list and it includes many cases that are not serious. Some examples from Brooklyn Defender Services’ own experience are as follows:

Assault in the 2nd Degree:

  • An immigrant mother used corporal punishment, but did not injure her child, not knowing that the laws and cultural norms in the U.S. are different from her country of origin.
  • A client got frightened when a plainclothes police officer approached to arrest him. When the client ran, the officer fell and skinned his knee; the client was charged with assault 2nd because there was injury to an officer.
  • A client had a verbal argument with a 66-year-old man who didn’t like that the client was smoking a cigarette. During the argument, the client pushed the man away, and the man fell to the floor. When the man told police his leg hurt, client was charged with assault 2nd because the complainant was 65 or older.

Criminal Possession of a Weapon in the 3rd Degree:

  • A gun was found in the closet in one room of an apartment. Every resident of the home, including the tenant’s mother and grandmother, was arrested and charged with possession of the gun.

Burglary in the 2nd Degree:

  • A homeless client went into the lobby of a building and took a trash bag. Because a lobby is considered a “dwelling,” the client was charged with felony burglary of a dwelling.

Robbery in the 2nd Degree:

  • An after-school fight turned into a “robbery” when one of the participants in the melee dropped his phone and another person picked it up.

Robbery in the 3rd Degree:

  • A homeless man pursued a couple for two blocks after asking them for spare change. No weapon or actual threat is required for this crime, so police often charge a person with felony robbery for “aggressive begging.”

   b. There is no time limit on the Mayor’s stated policy, punishing even people with very old convictions, who may have a chance to fight deportation but would not be able to mount a defense.

For example, a father who was brought to the U.S. as a child, got into trouble as a teenager, and is now in his 40s with a job and children of his own, would be unable to make his case that he should be allowed to stay in the country under discretionary relief. Currently, a qualified NYIFUP attorney would ensure that every legal and factual issue is investigated and that all the relevant information is before the court.

By foreclosing legal representation in the first instance, anyone with a compelling story will be summarily deported without having a chance to explain their circumstances. Prior to NYIFUP, claims of this type simply did not succeed when people were unrepresented. In the example of the father above, he was never incarcerated, successfully completed probation, and attended college. He now works, pays taxes, and attends church. Without an attorney, this man would be summarily deported, at great loss to his family and community. Many of the most compelling cases fall within the technical definition presented by the Mayor and may not qualify for NYIFUP if his policy is enacted as stated.

   c. The proposed residency requirement would mean that many people who are intimately connected to the fabric of New York City would be excluded from representation simply because they cannot afford City rents

New York City is the life center for all of the surrounding areas. Our city benefits significantly from the labor and investment of the millions of people who come to our City every day to work. Manhattan alone sees its population double during the day, from 1.6 million to 3.1 million, because of the influx of commuters from the other boroughs and outside the City. As rents rise, more and more vulnerable groups are being forced out of their communities, out into Westchester or Long Island so that they can afford to put a roof over their families head, even if it means hours-long commute every day to the City to work. The vast majority of our clients are housing insecure, and many are homeless, or spend time at the homes of friends, because they cannot afford city rents. Many of our NYIFUP clients have children and family members who live in New York City, even if they themselves did not reside within the five boroughs when they were arrested by ICE.

The purpose of NYIFUP has always been to promote the safety and well-being of New York’s immigrant communities, including U.S.-citizen children of immigrants, with the recognition that helping adults who have the right to stay in this country and provide for their families helps the community as a whole. By limiting the program to people whose last address was located in the City, we damage the universal representation mandate that is premised on the recognition of the broader benefit that NYIFUP services provide to our immigrant communities.

V. The Critical Importance of NYIFUP’s Universal Representation Mandate

Universal representation protects the most vulnerable New Yorkers, helps to combat racial disparities, and sends a strong message to our immigrant communities that the City will support and protect them against federal policies that are explicitly and intentionally promulgated to exclude and deport immigrants of color from our country.

   a. The most vulnerable New Yorkers will pay the highest price without counsel

People who are the youngest, the oldest, the mentally ill, the sick and disabled are at the most risk if they do not have an advocate to look at their case and determine if they can avoid deportation, usually to a country that does not have medical care to meet their needs. If any bar to representation is created, then those who need an advocate the most will not even get an attorney to look into their situation. Currently, NYIFUP attorneys make sure that people who may not be fully competent due to their age, health or other circumstances are protected in the legal proceedings and in the community.

Even if a vulnerable person ends up being deported, NYIFUP staff are able to expedite the deportation, reducing an unnecessarily jail stay, and can also coordinate with the client’s family to make any arrangements possible, deliver identity documents or belongings, and notify relatives in the home country.

     b. Due to the racial disparities in the criminal justice system, the people most likely to be arrested, overcharged, placed in jail on bail and forced to accept a plea that would not minimize collateral consequences are overwhelmingly black and Hispanic.

It is important to view this policy in the context of the racial disparities in the criminal justice system. A black or Latinx person is more likely to be arrested for something that a white person would not be arrested for. In the examples of 170 crimes that would be excluded under the Mayor’s proposal, it is unlikely that a white mother who used corporal punishment would be arrested. It is also unlikely that a group of kids fighting after school would result in arrests in a white community. Certain groups of people are more likely to be saddled with one of the convictions in the detainer list because of their ethnicity. This is compounded by the fact that the person is likely to be in jail solely because they cannot afford bail. If any resolution of the case becomes available that would allow the person to go home, he or she is likely to accept it even if there is a chance of an immigration consequence.

Under the Mayor’s proposal, attorneys who are ready, willing and able to make sure that after all that has already happened to the person, they are not unfairly deported, would decline to even interview the person to see if they have any remedy before the Immigration Judge. This compounds the dramatic racial disparities that exist right now rather than starting to even the playing field for people of color.

   c. New York City’s clear message to all New Yorkers that if their loved one is locked up and facing deportation, they will not be alone fighting their case is eviscerated by anything less than universal representation

Over the past four years, the NYIFUP providers have shown the immigrant community that NYC stands by them and will ensure that they and their loved ones are treated fairly and with dignity. Even in cases when we cannot avoid deportation for a client, the fact that the information is clearly explained, family members are apprised about what is happening, and community organizations are clear who to call for help sends a powerful message to the community about what New York City stands for.

With families, individuals and community-based organizations unable to assess eligibility, the work done to support the immigrant community will be lost. The uncertainly and anxiety of the immigrant community will result in unscrupulous people taking advantage of people, many of whom would have been eligible for NYIFUP.

VI. Conclusion

NYIFUP has never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

We ask that the City Council reject the Mayor’s proposal to eliminate NYIFUP’s mandate of universal representation and instead, continue the program’s eligibility requirements as they currently exist while increasing funding to meet the increased need of immigrant New Yorkers in detained deportation proceedings.

If you have any questions, please feel free to contact me at 718-254-0700 ext. 434 or asaenz@bds.org. Thank you.

SCOTT HECHINGER TESTIFIES BEFORE THE NYC COUNCIL ON BAIL REFORM MEASURES

TESTIMONY OF:

Scott Hechinger

Senior Staff Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES 

Presented before

The New York City Council Committee on Fire and Criminal Justice Services

In relation to Int. 1531-2017, Int. 1541-2017, 1561-2017, Int. 1576-2017 & Int. 1581-2017

May 2, 2017

I. Introduction

My name is Scott Hechinger and I am a Senior Staff Attorney at Brooklyn Defender Services. BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Over the last six years, I have represented thousands of clients facing misdemeanor and felony charges, from arraignment to trial. I see the consequences of bail and the administration of bail first hand, day in and out.

BDS deeply appreciates the work of council members on the Committee on Fire and Criminal Justice Services to minimize the criminal justice system’s reliance on pre-trial detention and bail.  I am grateful to be here to give voice to the experience of my clients and my fellow practitioners and add support to the practical and productive process-oriented reform proposals being considered today.

II. Background

“Will I be going home?”

Those are often the first words I hear my client say when I meet them behind the arraignment courtroom, bars or glass separating us. I first try to deflect and talk about the allegations and find out more about them, their story, their community ties, what brought them there.

But I can only deflect for so long. For most of my clients, the answer is “no, you’re not going home. Not if bail is set, at least.”

No matter the important process reform proposals being discussed today, when bail is set, most of clients will face the hell that is Rikers. That is because most of my clients cannot afford any amount of bail or the amount of bail set by judges. They will lose jobs. They will lose housing. They will leave those in need of caretaking without caretakers. They’ll miss medical necessities. And they ultimately will also have worse case outcomes.

Yet for those who may be able to afford some amount of bail, all too often the answer to that first question is also “no.” Not because of their inability to pay. But because of flaws in NYPD, court, and DOC processes that operate as barriers to accessibility and transparency. Flaws that undermine the purpose of New York’s bail statute: “to improve the availability of pre-trial release.”[1]

Financial conditions of release are on their face obviously unfair, but they also make for astoundingly poor public policy. It costs New York City taxpayers approximately $247,000 a year (nearly a $677 day) to keep someone incarcerated in Department of Correction (DOC) custody.[2] Research has shown that spending even two days incarcerated during the pendency of a case can increase the likelihood of a harsher sentence, can cause a permanent decrease in employment prospects, promote future criminal behaviors and have long-lasting negative health implications.

New York’s multi-layered bureaucracy and flawed practices involved in the process of the payment of bail results in individuals being unnecessarily sent to Rikers Island when bail could be paid prior to leaving criminal court, and/or held far longer once there.

Brooklyn Defender Services supports the proposals before this committee today, with some recommendations for increasing impact. Together, these proposals would:

  • Enhance accessibility, making it easier for individuals and families to secure timely pre-trial release, preferably before ever entering Rikers Island;
  • Reduce unnecessary obstacles that now stand in the way of individuals and families who may be able to afford bail from paying it; and
  • Promote transparency around the system of pre-trial detention by providing better information on the payment of bail to loved ones and by reporting outcomes so that law and policymakers can work toward reducing the numbers of those detained pre-trial.

III. Bills

Intro No. 1531-2017in relation to requiring the department of correction to efficiently facilitate the processing of bail payments

BDS strongly supports the introduction of this bill which would require DOC to accept cash bail payments immediately and continuously after a person is admitted to the custody of the DOC.  The bill also requires that the Department release inmates within two hours of payment. The bill also requires DOC to accept cash bail at the courthouse if there is not another location within one half mile of the courthouse.

Once bail is set at arraignments and the NYPD transfers custody to DOC in criminal court, bail cannot be paid until the person is first transported to Rikers, processed, and admitted, a process which often takes upwards of twelve hours. Until then, the person is “in transit.” Family members are forced to continuously check back in at bail windows, or online, to see when their loved one has finally made it through intake so they can finally post bail at that time, an arduous and time consuming process. For individuals with jobs, children and other family obligations, and those who live far away from Court, Rikers, or a Rikers borough facility, this means that bail usually will not get paid until sometime the following day. A person is thus forced unnecessarily to spend the night at Rikers, in intake, where there are no beds, no showers or access to medical staff. This bill would allow family members and others to pay bail while a person is “in transit” and begin the process of getting their loved one released from custody.

Yet in BDS’s experience, even after bail is finally paid, it takes clients a minimum of ten hours to be released from DOC custody. Indeed, we recently had a case where a client was not released for more than 27 hours.

Our client, who I will call Mr. B, was incarcerated at Brooklyn Detention Complex in February 2017. In early February he was transported to Brooklyn Supreme Court where he was placed in a room with another inmate in the Brooklyn Supreme Court “pens” on the third floor. He fell asleep on a bench and awoke to the other inmate sexually assaulting him. He immediately reported the assault to his attorney. After court, he verbally reported the incident to a DOC captain and requested to make a written report. He was not able to get an officer’s attention so he resorted to cutting his wrist, which finally prompted him to be seen by mental health and medical staff and file an incident report for the sexual assault.

Mr. B’s defense attorney was able to get into contact with Mr. B’s family, all of whom live in Ohio. Despite the distance and significant hardship, the family got the money together to pay a bail bondsman to bail Mr. B out and get him out of custody nearly three weeks after the sexual assault. However, the bail bonds agent paid the bail on the instant case, but not the $1 bail on a separate case. The bail bondsman told the family he would not pay the $1 bail unless they paid him an additional $125, which the family could not afford, so Mr. B remained in custody until the next day in late February, when our jail services social worker was able to go to Brooklyn Detention Complex to pay the $1 at 9 am.

Bail was officially paid by 11:10 am after a two-hour process, yet Mr. B was not released for another 27 hours. BXDC did not even transfer Mr. B from his housing unit to intake until 11 pm, 12 hours after bail was paid. They then said he needed to be cleared by mental health before being released. DOC transferred Mr. B from intake to the clinic at BKDC at 4 am the following day. He waited several hours before being seen by mental health staff and was later discharged from DOC custody at 2 pm, 27 hours after bail was paid.

This bill is a critical step forward if the end result is that people like Mr. B are released in two hours, as compared to 27, but we fear that the bill will only function as designed if DOC is held accountable in instances where they fail to comply. As currently written, there is no enforcement mechanism or cause of action for defendants who are not released within the two hour period. Without these protections, we believe that DOC will not have an incentive to change current practice.

We are also concerned that section (b) of the statute, as currently written, could be used to allow Mr. B to be held for 27 hours, as he was here, when mental health issues are implicated. It is not uncommon, in our experience, for abuse and assault experienced in detention to be the catalyst for mental health problems. However, a person who has paid bail to escape abuse should not be held even longer than someone who was not. We are not suggesting that someone who is experiencing an intense and immediate psychotic episode be released to the streets (there is already a competency process in place to handle cases like this), but we do want to point out the potential for abuse in the bill as currently written. If facts like Mr. B’s never see the light of day, these instances of abuse will continue to occur. In short, we need to have a review process for DOC decisions to hold city agencies accountable in individual cases where injustices occur.

Intro No. 1541-2017to permit the delay of the formal admission of inmates to the custody of the department of correction in order to facilitate the posting of bail

BDS supports the introduction of this bill that would authorize DOC, in their discretion, to hold someone for no more than 12 hours to allow the person’s family or friends to come to the courthouse to pay bail and avoid DOC detention altogether. The bill, however, effectively precludes delay in felony cases and DWIs.

While most of our clients cannot afford any significant amount of bail, we do have some clients who would be able to pay bail if they had sufficient time. More time is critical for our clients as bail payers often do not yet know about the arrest at the time of arraignment, work full time jobs and cannot just leave work, live far away, need to cobble together funds from family and friends, or need to secure the help of a bail bondsmen. Currently, when bail is set, we as public defenders have to scramble to delay the transfer of custody from NYPD to DOC, but the success of the request depends on factors outside of our control: the mood of NYPD personnel, the number of individuals in the holding pen, the Rikers bus schedule, or the time of day. In any case, thirty minutes is the norm and three hours is the absolute maximum delay now allowed before an individual is transported to Rikers.

We believe that 12 hours would, in some cases, be sufficient time to prevent unnecessary incarceration in DOC custody.

The permissive language in this statute would not require DOC to comply with the outlines proscribed, but it would require DOC to report on how often they voluntarily comply with the statute. Thus we support this bill with the understanding that it appears to be intended to function more as a voluntary pilot program than as a bill to actually facilitate the posting of bail.

We recommend amending the bill to actually require DOC to comply rather than permit them to delay transportation at their discretion. We also recommend amending the language in 1(a)(2) so that it is more clear; the current language is confusing.

The bill also leaves unanswered questions. How would this proposal work in night arraignments? Is this only for people who are arraigned during the day? Delay is “not permissible” for anyone who has bail set in an amount of $10,000 or more: essentially all felony cases. Given that the vast majority of cases where bail is set involve felonies – not misdemeanors, why was this particular threshold selected? Moreover, bail in the amount of $10,000 or more is usually paid using bail bondsmen, a more time consuming process. If the purpose of the bill is to serve as a pilot experiment, then many of these issues could be ironed out over the coming months. But we recommend that the Council consider all of the language carefully before signing anything into law.

Intro No. 1561-2017in relation to requiring the department of correction to facilitate the posting of bail or bond

BDS supports hiring someone to work in DOC to assist inmates to pay bond. Critically, this bill would ensure that a bail facilitator meet with inmates within 48 hours of admission to DOC custody and provide inmates with key information, including the amount of their bail or bond, their NYSID and other identifying information, and options for bail payment.

We strongly recommend that the bail facilitator position not be staffed by a corrections officer, but instead by a non-profit or other independent entity to improve collaboration and trust between the eligible person fighting for their release and the bail facilitator. We also request that there be a facilitator for each facility, as moving between the various facilities presents many challenges.

We also wonder how the facilitator will work with bond companies. Bond agents use a host of abusive practice to prey on those in need of their services. These practices have flourished unchecked. The bail facilitator should be trained to know the legal obligations of bail bonds companies and help mediate and advocate for the incarcerated person and their family.

Intro No. 1576-2017 – In relation to requiring the New York City police department to permit arrestees to access contact information

BDS supports this bill and has long called on the NYPD and court staff to allow detained individuals access to contact information in their phones. Now more than ever, individuals do not remember phone numbers of loved ones, friends, and family. Cell phone contact lists and speed dials have overtaken memories.

Without contact information, there is no way for defenders or the client to make contact with anyone who may be able to pay bail for the client, or simply support him or her in arraignments, which would strengthen defense counsel’s application for release. In addition, without contact information, the Criminal Justice Agency (CJA) will have a difficult time verifying community contacts, and for purposes of the delay proposals outlined in Intro No. 1541-2017 neither DOC nor the CJA will be able to make “direct contact with a person who reports that he or she will post bail . . . .”

We would recommend amending the language to ensure that arrestees are able to look at their own phones and write down the numbers themselves. As currently written, the bill would allow the officer to record the contact information for the detained person. We are concerned that this language would facilitate infringement of our clients’ Fourth Amendment right to be free of unlawful searches and seizures. It would be improper for officers to use this well-intentioned and long overdue policy change to violate the warrant requirement and inspect the contents of our clients’ phones in the hopes of finding incriminating evidence.

There is an existing workable model for this procedure at the Red Hook Community Justice Court. There, a detained individual’s personal effects, including their wallet, keys and cell phone, are transported from the 72nd, 76th, and 78th precincts to the courthouse in a manila envelope along with the defendant. While in the pens at Red Hook awaiting arraignments, the individual, with the assistance of court officers, is generally permitted to pull up the contact information for a few individuals to allow them to provide verifiable contact information to the CJA and to the court to make a stronger argument for release on recognizance.

Furthermore, transporting a person’s personal effects in a manila envelope to the courthouse means that a person may then have the means to pay bail with cash or credit card in his wallet. However, even if the person has access to his debit or credit card, under current practice, he cannot actually use the ATM to withdraw money because there are no ATMs located in the pens and staff refuse to escort our clients to the ATM in the courthouse.

Intro No. 1581-2017in relation to requiring the mayor’s office of criminal justice (MOCJ) to post public information regarding posting bail in courtrooms

BDS supports this bill, which would require MOCJ to work with the Office of Court Administration (OCA) to display information regarding posting bail conspicuously in all locations in courthouses. Information shall include how to determine the amount and type of bail ordered and all processes required to post bail, including where and how to post bail.

We recommend providing the public with more information, including the maximum fee that a bondsman can charge and other information about bail bonds to limit the abusive practices that bail bonds agents engage in as a matter of course. Rather than recreating the wheel, in addition to posting clear information about the processes required to post bail in the courthouse, we recommend that MOCJ distribute a resource called “Bail’s Set…What’s Next?” created by the Center for Urban Pedagogy in partnership with the Brooklyn Community Bail Fund.[3]

IV. Additional Action Needed

These bills are an important step in ensuring that people who may be able to pay bail are in fact able to pay bail and avoid unnecessary and harmful pre-trial detention. However, there is still more that we must do if the City is committed to substantially limiting pre-trial detention sufficiently to close Rikers Island.

   a. We must hold DOC accountable if they fail to comply with these proposed laws.

These bills must include a cause of action or sanctions if DOC fails to follow its legislative mandate. Without a consequence, we have little hope for the kind of systematic change that closing Rikers Island requires.

   b. We must hold prosecutors and judges accountable for relying solely on cash bail and commercial bond as forms of relief, even though New York law provides courts other options

The express purpose of bail is to enable the pretrial liberty of all defendants, regardless of their financial means. For this reason, New York Criminal Procedure Law Article 520 authorizes multiple forms of bail other than cash and bond to fulfill its purpose of not conditioning liberty on the defendant’s ability to pay money upfront. Yet New York judges uniformly neglect to consider non-monetary forms of bail. Instead, judges are firmly entrenched in the culture of setting only bond or cash, the two most restrictive forms of bail. The City must work with judges and prosecutors to encourage them to allow for unsecured appearance bonds and other bail alternatives that are actually within a person’s reach.

   c. We must make it possible for a people to pay bail for themselves if they have the money

Practically, if a person can pay bail for herself, she should be able to do so. She therefore needs access to both her wallet (with her credit or debit card and/or cash) and an ATM.

For a person detained in the pens at the courthouse: Currently, a person’s personal effects including wallet, keys, MetroCard (and even critical assistive devices such as canes, walkers and crutches[4]) remain back at the precinct and do not travel with the accused to arraignments. Even if she is allowed to take her debit card with her, staff will not escort her to an ATM while in custody, and there are no ATMs located in the pens. While these bills address the ability of family and friends to pay bail, they do nothing to help people pay their own bail. If the point of bail is to set an amount that a person can actually afford to ensure their return to court, then we must allow people who can pay to do so on their own. Moreover, Unsecured Appearance Bonds, an authorized alternative form of bail that would allow a defendant to be released upon the promise to pay a set amount if he or she does not come back to court, are never ordered, despite the requests and best efforts of public defenders.

People who are already in DOC custody at a DOC facility: People who are incarcerated can pay bail through their commissary account, but if they have a credit card/benefit card in their property with DOC, they cannot access it nor use it themselves to pay their bail.  This becomes a huge obstacle for people who do not have family or community support who can help pay. We recommend that people be allowed to access their personal effects so that they can pay their own bail and be released.

V. Conclusion

These bills demonstrate the Council’s commitment to making our bail system fairer and more just, a critical component to reducing pre-trial detention and ending the horror that is Rikers Island. BDS looks forward to working with the Council to achieve our shared goals. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 276) or shechinger@bds.org.

[1] People ex rel. McManus v. Horn, 18 N.Y.3d 660 (2012).

[2] Independent Commission on New York City Criminal Justice and Incarceration Reform, A More Just New York City (2017), available at https://static1.squarespace.com/static/577d72ee2e69cfa9dd2b7a5e/t/58f67e6846c3c424ad706463/1492549229112/Lippman+Commission+FINAL+4.18.17+Singles.pdf.

[3] Available at http://welcometocup.org/Store?product_id=141.

[4] See BDS’s June 23, 2016 City Council testimony on access to court facilities for people with disabilities, available at http://bds.org/wp-content/uploads/06.23.2016-BDS-Testimony-City-Council-Committees-on-Disability-Mental-Health-Legal-Services.pdf.

NYASA HICKEY TESTIFIES BEFORE THE NYC COUNCIL JOINT HEARING ON IMMIGRATION

TESTIMONY OF:

 

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration, Committee on Public Safety

and Committee on Education

Joint Hearing on Immigration

 

April 26, 2017

 

Introduction

My name is Nyasa Hickey. I am the supervising attorney of the Padilla Unit and Youth and Communities Project at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the nine bills under consideration today.

BDS is the largest legal services provider in Brooklyn, representing low-income New Yorkers who are arrested, charged with abuse or neglect of their children or face deportation in nearly 40,000 cases each year. Since 2009, BDS’s immigration practice has counseled, advised or represented more than 7,500 immigrant clients. We have been a proud New York Immigrant Family Unity Project (NYIFUP) provider since the program’s inception.

New York City, and in particular, the City Council, has been a leader in the protection of non-citizen residents. We strongly support the sentiment behind these bills. They recognize the enormous threat that immigrant communities face in an era of increased surveillance and enforcement. The City can and should do more to ensure that residents are not unnecessarily targeted for detention or deportation because of some action or failure to act by the City. These bills are an important step towards increasing the reach of Sanctuary City policies. We also articulate additional ways that the City can expand the proposed bills to demonstrate its commitment to being a Sanctuary City.

Bills

  1. 1568 – City Resources Bill, introduced by Council Members Espinal, Johnson and the Speaker

Brooklyn Defender Services supports this bill. The bill makes clear that city officers and employees shall not accept requests by federal law enforcement agencies to support or assist in operations primarily in furtherance of federal immigration enforcement and that no city resources shall be used for such efforts.

  1. City Property Bill, introduced by Council Members Menchaca, Johnson and the Speaker

BDS supports this bill. The bill restricts immigration law enforcement’s access without a judicial warrant to city property. The bill also requires the Mayor’s Office of Immigrant Affairs to create signage to inform the public of their rights with respect to federal immigration enforcement.

  1. 1569 – Disorderly behavior bill, introduced by Council Members Gibson, Lancman, and the Speaker

BDS supports this bill. This bill creates a new disorderly conduct offense, which would be considered an infraction under federal law, unlike the New York Penal Law 240.20, disorderly conduct, which is sometimes treated as a criminal conviction under federal immigration law.

  1. DOE Undocumented Students Information Bill, introduced by Council Members Dromm, Menchaca, Ferreras-Copeland and the Speaker

BDS supports this bill. The bill requires the Department of Education (DOE) to provide biannual notices to City students and their families in plain language about their rights to prevent the disclosure of certain information as well as other rights pertaining to public education regardless of immigration status, the right to refuse to speak to federal immigration authorities, and the right to apply for certain immigration benefits. In addition, the notices will state the DOE policy regarding interactions with federal immigration authorities and protocols for detention of a parent by federal immigration authorities.

  1. EO bill on Identifying Information, introduced by Council Members Williams, the Speaker (Council Member Mark-Viverito), Espinal and Ferreras-Copeland

BDS supports this bill. The bill codifies and strengthens Executive Order 41 and aims to protect the disclosure of personal identifying information that could be used for purposes contrary to the City’s interests.

Our main feedback is that the bill it is fairly detailed and may, as written, be difficult for agencies to interpret and follow. Without offering specific suggestions, we recommend editing the bill to be more simple and shorter, if possible, to facilitate compliance.

  1. Identifying Information Division bill, introduced by the Speaker

BDS supports this bill. The bill creates an identifying information division within the City law department to ensure the city’s data retention policies do not place immigrants at risk or hinder immigrants’ access to City services. The identifying information division also centralizes the review of all disclosures of info to federal immigration authority, which imposes bureaucratic hurdles to such disclosure and ensures some level of uniform enforcement of rules.

  1. MOIA Expansion Bill, introduced by Council Members Dromm, Rodriguez and the Speaker

BDS supports this bill, which would expand the powers and authority of the Mayor’s Office of Immigrant Affairs.

  1. 1578 – MOIA Task Force Bill, introduced by introduced by Council Members Menchaca, Dromm, Williams and the Speaker

BDS supports this bill, which would create an interagency task force to review compliance with the new bills, the detainer law, and ongoing developments in state and federal law.

  1. 1558 – Probation and ICE bill, introduced by the Speaker and Council Member Ferreras-Copeland

BDS supports this bill. The bill applies the DOC detainer law to the Department of Probation, ensuring that the DOP’s resources are allocated for appropriate purposes in accordance with the City’s interests.  However, BDS recommends expanding the scope of the reporting requirements in relation to concerns we will articulate in the subsequent section.

  • Recommended Additions to the Proposed Bills
  1. Expand Identifying Information Division authority to include the Department of Correction (DOC), the New York Police Department (NYPD), and Department of Probation (DOP).

As of April 2, 2017, ICE is utilizing a new immigration detainer form, Form I-247A (Immigration Detainer—Notice of Action). The previously used forms I-247D (Immigration Detainer—Request for Voluntary Action) and I-247N (Request for Voluntary Notification of Release of Suspected Priority Alien) and Form I-247X (Request for Voluntary Transfer) are no longer being issued.  As a result, detainer requests and requests for notification are now encompassed on one form, whereas previously they were issued on two separate forms.  In addition, according to Policy Memo No. 10074.2 issued on March 24, 2017, the new form I-247A must be accompanied by a civil immigration warrant in the form of I-200 or I-205.

In the past couple of weeks two BDS clients have been arrested by ICE agents at Rikers Island and transferred to immigration custody.  BDS believes that in both cases, DOC notified ICE about the individuals pending release pursuant to a request for notification and ICE arrested and detained the individuals directly at Rikers Island.  BDS attorneys, appointed by the criminal court to represent these two individuals, were not informed by DOC about the request for notification of the person’s release to ICE. Instead, upon our inquiry before each client’s anticipated release date from DOC custody, we were informed that the individual was to be released pursuant to the DOC detainer law.  Subsequently, BDS was not informed about the release of the individual to ICE custody directly from DOC custody.

In neither instance was BDS provided with a copy of the detainer or request for notification to determine whether or not it was lawful or accurate. Finally, we were not provided sufficient information about who within the Department makes the ultimate determination to release our clients to ICE, or notify ICE of pending release of our client and under what authority that determination is based.  These two recent arrests appear to reflect a change in the Department’s interpretation or implementation of the restrictions under the NYC DOC detainer law or, in the alternative, it reflects an increase in federal immigration enforcement and consequent interaction with DOC.

Accordingly, there is an urgent need for transparency about the DOC’s internal detainer and request for notification compliance policy. Defense counsel’s job is to hold the government to its constitutional and statutory obligations. We cannot fulfill our duties as defense counsel to help protect New Yorkers if we are not provided with the appropriate information.[1]  Defense counsel and affected individuals in the City’s custody must be informed in advance about the existence of a detainer or request for notification (the I-247A form), the alleged basis of that detainer and the City’s determination about whether or not the detainer or request for notification will be fulfilled.

To ensure that all New Yorkers in the City’s custody receive due process and sufficient legal advice before transfer to immigration custody, we request the City Council legislate the following:

  • Defendants and defense counsel should be notified immediately if there is a detainer or a request for notification from ICE to NYPD, DOC or probation.
  • Defendants and their counsel must be provided with a copy of the detainer, request for notification and any accompanying information issued by federal law enforcement.
  • The NYC departments of police, correction, and probation shall be subject to the advice, review, and disclosure requirements of the proposed “identifying information division” bill.
  • The NYC departments of police, correction, and probation should publish on their website and share with the Council its policy for complying with detainers and requests for information from federal law enforcement. The policy should articulate the chain of command for the decision making process, including a final decision maker and point person for individuals and defense counsel to contact in the law department in the identifying information division.
  • The reporting requirements for NYPD, DOC and DOP should include the reporting and notification to affected individuals requirements specified in the “identifying agency” bill. Similarly, the reporting requirements in the proposed probation bill should include reporting of requests for notification and transfer of individuals to ICE custody pursuant to a request for notification.
  • Additionally, reporting requirements for DOC, NYPD, and DOP should be expanded to include requests for notification received, requests for notification fulfilled, and transfer to ICE custody from the City’s custody, regardless of whether or not an individual was held beyond the time he would otherwise be held pursuant to a detainer. Specifically, they should be required to report annually:
    • How many times NYPD called ICE or federal immigration enforcement to verify a NCIC hit for an individual in NYPD custody;
    • How many times ICE was called about a person in DOC custody to verify or request information;
    • How many times ICE picked up an individual within DOC custody—how many times an individual in DOC custody was released to ICE custody;
    • How many times NYPD called ICE to notify about an individual who falls within the “violent or serious felony conviction” definition under NYPD detainer law;
    • How many times DOC called ICE to notify about an individual who falls within the “violent or serious felony conviction” definition under DOC detainer law;
    • How many times DOC and NYPD received a I-247A form from federal authorities.

These amendments would go a long way to ensuring transparency and accountability for these agencies that deal with New Yorkers accused or convicted of crimes, a group highly vulnerable to immigration enforcement.

  1. Implement training and compliance enforcement mechanisms for the proposed and existing bills, including Local Law Administrative Code 9-131 and § 14-154.

To ensure that all City agencies and employees, including NYPD, DOC and probation, understand their obligations and requirements under existing and proposed legislation, we request that the City mandate training and create compliance mechanisms.

For example, in some instances it appears that NYPD is communicating information about defendants’ whereabouts to immigration enforcement authorities when they call for verification of National Crime Information Center (NCIC) information. While some have attributed these instances to rogue NYPD officers, the resulting courthouse arrests strongly suggest that NYPD requires additional training on how to comply with the detainer law. Similarly, based on our conversations with various DOC staff, there is definite confusion among department staff about whether an ICE detainer (or warrant) will be honored, as well as confusion about the difference between an ICE administrative warrant, an ICE detainer, an ICE hold, and a federal judicial warrant.  This confusion has resulted in difficulty in posting bail and other delays in our client’s release from DOC custody.

In short, the need for training of the people who will be called on to implement these laws is acute. Experience shows that a lack of training can lead to ICE arrests, deportations and greater fear and uncertainty among immigrant communities: exactly the opposite result of what the proposed legislation seeks to achieve. The need for regular and consistent training is greatest for NYPD, DOC and DOP employees who regularly interface with federal authorities as a component of their day-to-day responsibilities. The City can achieve the stated goals of these bills, help to ameliorate harm to immigrant communities, and provide City employees who are dedicated to serving New York residents with the tools they need to carry out the letter and the spirit of the law, but only if we ensure proper training of employees on the frontline.

Further actions towards ending Broken Windows policing

BDS wants to applaud the City for long-standing efforts to roll back broken windows policing and to lower arrest numbers. This policy shift likely saved countless people from unnecessary immigration enforcement and other devastating collateral consequences like criminal convictions, mass incarceration, homelessness, child welfare involvement and diminished employment opportunities.

As the Council already knows, NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

New York is safer than it has ever been, in part because of the City’s step away from the mass criminalization of communities of color in an effort to build trust between neighborhoods, residents and the city agencies that serve them. However, the Council must remain committed to continuing to roll back Broken Windows policing. We can further limit the flow of the arrest-to-deportation pipeline by continuing efforts to eliminate arrests for low-level behavior in the first instance so that a person’s fingerprints are never uploaded to the FBI database.

We call upon the Council to continue working with the Mayor’s office and the NYPD, with the goal of functionally eliminating arrests for quality of life crimes. We can improve the quality of our communities without fingerprinting people and stigmatizing them with a criminal record if they cannot afford to pay their subway fare or if they ride their bicycle on a sidewalk. An end to Broken Windows makes all of New York’s communities stronger, including immigrant communities.

Conclusion

The bills before the Council today are important steps to ensuring that New York City is a sanctuary for all of its residents, including non-citizens. We call on the Council to remain committed to protecting the rights of New Yorkers is by ending Broken Windows policing, removing ICE from our courthouses, shelters and other city buildings, and providing immigrant communities with education, increased funding for legal counsel and support.

If you have any questions about my testimony, please feel free to contact me at nhickey@bds.org or 718-254-0700 ext. 230.

[1] A related problem is that judges and District Attorney’s offices are no longer turning over the NCIC to defense attorneys in arraignment along with the defendant’s RAP sheet. Until a few weeks ago, the NCIC, which listed any immigration holds or prior deportation orders, were turned over as a matter of course to defense counsel as a part of the RAP sheet. The recent withholding of this information, seemingly at the behest of the feds, severely limits defense counsel’s ability to properly advocate for our clients at arraignment on matters of bail and whether or not to accept an immediate disposition in the case. We are working with OCA and other court stakeholders to challenge this new decision, but wanted to raise this to the Council as another very recent change in federal policy that is impacting City actors and harming immigrant New Yorkers and their communities.

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.

DIRECTOR OF CIVIL JUSTICE PRACTICE SERGIO JIMENEZ TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON PUBLIC HOUSING

 Sergio Jimenez – Director, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Public Housing and Oversight & Investigations

Oversight Hearing Examining DOI’s Report on NYCHA’s Permanent Exclusion Policy

April 24, 2017

I. Introduction

My name is Sergio Jimenez and I am the Director of the Civil Justice Practice at Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent Brooklyn residents every year. I thank the New York City Council Committees on Public Housing and Oversight & Investigations, and in particular Chairs Ritchie Torres and Vincent Gentile, for the opportunity to testify on DOI’s investigation of New York City Housing Authority’s (NYCHA) Permanent Exclusion policy and Councilmember Gibson’s reporting legislation.

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NYASA HICKEY TESTIFIES BEFORE NYC COUNCIL BUDGET HEARING ON IMMIGRATION

TESTIMONY OF:

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Budget Hearing on Immigration

March 22, 2017

  1. Introduction

My name is Nyasa Hickey. I am the supervising attorney of the Padilla Unit and Youth and Communities Project at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the impact of increased immigration enforcement and the need for significantly increased funding in order to meet the needs of the communities we serve.

BDS is the largest legal services provider in Brooklyn, representing nearly 40,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. Our immigration practice is composed of 17 full-time immigration attorneys, two law graduates, five paralegals accredited by the Board of Immigration Appeals, one full-time and one part time social worker, two legal assistants and two Immigrant Justice Corp Legal Fellows representing more than 1,000 immigrant New Yorkers every year. We are a Board of Immigration Appeals-recognized legal service provider.

Our three immigration practice areas include:

  • The BDS Padilla Unit advises BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas to help avoid or minimize negative immigration consequences. About a quarter of BDS’s 35,000 criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or loss of opportunity to obtain lawful immigration status as a result of their criminal case. Our six criminal-immigration specialists provide support and expertise on more than 1000 cases that survive arraignment involving non-citizen clients and our Padilla specialists are called at least once, and often multiple times, in each arraignment shift to advise on the ramification of a plea offer at arraignment.
  • The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 700 people in deportation proceedings. As of December 2015, 52 percent of pilot clients have been reunited with their families. NYIFUP attorneys have won 71 percent of their trials. NYIFUP is projected to increase the percentage of immigrants who will win the right to remain in the United States by 1,000 percent, compared with prior success rates for detained, unrepresented immigrants.
  • BDS’s Immigrant Youth and Communities Project has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings. Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense.
  1. Client Stories

The following three client stories[1] illustrates how coordination between all of BDS’ practice areas is critical for protecting immigrant New Yorkers from deportation and its attendant collateral consequences. Public defender offices like BDS are uniquely situated to advocate for New Yorkers whose criminal or family court involvement threatens their ability to modify their immigration status and lawfully remain in New York with their children and families.

Our civil justice team helps mitigate collateral consequences for NYIFUP clients.

Ray Browning is a permanent resident who has called Crown Heights, Brooklyn home since he was seven years old and had never returned to Guyana, where he was born. Immigration and Customs Enforcement (ICE) detained him outside his home and charged him as deportable based on a single 17-year old non-violent offense for which he had served 30 days in jail.  Mr. Browning has a close-knit and loving family that includes his adult siblings and his U.S. citizen fiancée and stepdaughter, all of whom depended on him financially and emotionally. His detention devastated him and his family, and his fiancée was served an eviction notice when she fell behind on her rent. Mr. Browning was assigned a NYIFUP attorney who was able to harness the family’s strong support to litigate his case as fast as possible when the judge appeared sympathetic to the case. His NYIFUP attorney collaborated with a Padilla attorney to investigate potential avenues of relief and prepare for trial. His NYIFUP attorney accepted an expedited trial date, prepared a large evidence submission in under two weeks, prepared the client and witnesses on the weekend, and won the client’s case less than a month after his first court appearance, allowing Mr. Browning to reunite with his family for Thanksgiving. In addition, our civil justice team worked with Mr. Browning’s fiancée to avoid eviction and clear the arrears that accumulated when Mr. Browning was detained and unable to help pay the rent. Mr. Browning and his family were able to remain in their home and Mr. Browning is now back at his job so that he can support his family.

Our family defense practice is an invaluable resource for our clients who are facing loss of their children because of immigration detention.

BDS first represented Larry Lewis in a misdemeanor criminal case in 2012. Mr. Lewis is originally from the Caribbean and has been a lawful permanent resident (LPR) of the U.S. for nearly thirty years. Our Padilla team worked with his criminal defense attorney to ensure a plea that would not further threaten his immigration status. Nonetheless, ICE detained Mr. Lewis at the conclusion of his criminal case because of two twenty-year-old misdemeanor convictions that made him deportable. After negotiating with ICE attorneys, Mr. Lewis’s BDS Padilla attorney obtained bond and his release from detention. Yet while Mr. Lewis had been incarcerated, his children had been placed in foster care. BDS’s Family Defense Practice stepped in as assigned counsel to ensure that Mr. Lewis could obtain visitation with his children and maintain their loving relationship. While out on bond, Mr. Lewis’s Padilla attorney began preparing for a 212(c) waiver application (a special immigration waiver for LPRs whose prior deportable convictions are from 1997 or earlier) and impending trial before the Immigration Court. Immigration judges have discretion to issue the relief and therefore, the waiver application requires the LPR to present sufficient positive equities to outweigh negative factors. Thanks to a BDS immigration practice social worker, Mr. Lewis’ case grew stronger with a report demonstrating his good character and positive relationship with his children. Fortunately for Mr. Lewis and his family, his Padilla attorney was able to show the judge that Mr. Lewis warranted the grant of the waiver. The judge’s approval of the 212(c) waiver allows Mr. Lewis to remain in the U.S. with his family and maintain his status as lawful permanent resident.

Another BDS client was able to avoid deportation because of our “Padilla plus” assistance.

Maria Lodi came to the U.S. as a teenager and is now a CUNY graduate with a bachelor’s degree in science and the mother of two USC children, including one child who is severely autistic and non-verbal. She fled her native Nigeria where she faced terrible stigma and persecution related to her mental illness. Once in the U.S., she filed an asylum claim, but was denied because at that time mental illness was not a cognizable reason for relief and an immigration judge order her removed. In 2012, she came to BDS for a misdemeanor charge that stemmed from her mental illness and the stress of caring for her two sons. Our Padilla team worked with her criminal defense attorney to ensure an immigration-safe disposition. We also realized that she had a pending DACA application while the criminal case was ongoing. We amended the DACA application to address the arrest and disposition and her DACA was granted. Ms. Lodi then married a U.S. citizen, so we filed a motion to reopen the order of removal and negotiated a termination of the proceedings for adjustment. During the pendency of the adjustment application, Ms. Lodi was hospitalized twice due to mental health breakdowns. Both times, the BDS team appeared at her civil commitment hearing and ultimately helped her to be released from the hospital and properly prepped in time for her adjustment interview. The adjustment application was granted and in January of 2017 she was granted a green card.

While hundreds of our Padilla clients have the potential to modify their status, we are unable to take on the majority of their cases because we lack the capacity. Cases like Ms. Lodi’s last for many years and may require significant resources, as her story shows. It is critical that the City fund immigration cases for people caught in the “justice trap” – to ensure that our community members can modify their status, remaining in their homes and with their families and precluding the collateral consequences we saw in Mr. Browning and Mr. Lewis’s cases. Public defenders can take on and often favorably resolve the cases that other organizations cannot, cases that pose extra challenges because of the client’s criminal court or family court involvement; cases that are now a priority for deportation under the new immigration enforcement scheme.

  • The Effect of Increased Enforcement on our Immigration Practice

The need for City support of immigration legal services has never been more acute. The President’s Executive Order upends the prior enforcement priorities for undocumented people and people with legal immigration status alike. It used to be that some immigrants who were convicted of minor crimes were not deemed enforcement priorities.  In addition, non-citizens were not considered priorities just by virtue of having been accused of a crime. After the new executive order, anyone with any criminal history or open charge is a priority, as well as anyone who has committed acts that constitute a chargeable criminal offense.

The recent change in rhetoric and enforcement has sown fear and confusion in our immigrant clients and impacted all three of our immigration practice areas.

Criminal defense/Padilla unit:

NYPD fingerprinting and Broken Windows policy leads ICE directly to our clients

NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

Once in court, we are far more limited in our ability to provide Padilla advice to non-citizen clients.

The current state of affairs endangers our ability to provide effective counsel under the standard articulated in Padilla v. Kentucky. In 2010, the U.S. Supreme Court held in Padilla that the Sixth Amendment requires criminal defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.[3] One in four of BDS’s criminal defense clients are not U.S. citizens and, under the president’s new enforcement priorities, they are all now priorities for deportation by virtue of having been arrested.

ICE regularly arrested our clients in Brooklyn courtrooms in recent years but as a result of anti-immigrant rhetoric and broad enforcement against immigrant communities, courthouse arrests are receiving much more media attention in 2017.  The vulnerability of our non-citizens clients in court settings instills fear in our clients, thus making them even more reluctant to appear in court to deal with their ongoing criminal case. The burgeoning fear of increased use of courthouse arrests is particularly troubling because our clients cannot modify their immigration status if they have an open criminal case, and they cannot resolve their criminal or family case if they fail to appear in court.

Our internal records indicate more than one dozen BDS clients have been arrested in Brooklyn courthouses and taken into ICE custody in the past four years. A BDS client from Guatemala had the story of her courthouse arrest chronicled in the N.Y. Times in 2014.[4] Most recently, in November 2016, a criminal defense client who was receiving treatment services through the Brooklyn Mental Health Court was arrested by ICE in the hallway of Brooklyn Supreme Court while he waited with his attorney for his case to be called. Our client had been reporting regularly to the criminal court for the past six months in accordance with his mental health court treatment plan. Our client has mental health diagnoses and had been hospitalized just prior to his ICE arrest in relation to his diagnoses.

Federal Immigration Court

Rising caseloads

This month, the immigration docket at the federal courthouse at Varick Street added a third intake day, increasing our monthly intake by 50% (up to 90 cases per month across all NYIFUP providers from a previous 60 cases per month). The courts are moving so quickly with cases that we cannot pick up cases fast enough. If intake numbers remain constant as they are now for the rest of the fiscal year, we will exceed our case target numbers by 180 to 250 cases by July 2017. And so far, these are cases that were brought into the system during the Obama administration. We have not yet seen the people who were arrested by ICE after President Trump took over. The third intake day is already exceeding our capacity to serve our existing clients, yet we expect further increased caseloads as we begin to see the results of the new enforcement priorities.

To make matters worse, not only are we seeing more cases, but we see that ICE has become harsher towards our clients than they were even just last year.

Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. Before last week, we had not had an asylum seeker released on bond in more than six weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. We have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

  • ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is secure detention. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release

Arrests in the courthouses

 

Our immigration clients, like our criminal defense clients, are scared to go to court. ICE agents now roam the hallways and last fall we often observed ICE agents arresting people in the courts. This was uncommon in recent years. For example, we represent a client who was re-detained by ICE when he appeared for an immigration court date last year. How can we adequately counsel our clients about the importance of attending their immigration court appearances to fight against deportation when they face the threat of coercive immigration detention every time they enter the courthouse doors?

ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to OSUP check-ins, but we simply do not have the capacity to meet the need and quell the well-founded fears of our clients and threats of detention and deportation.

In the Community

Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press. We are doing our best to meet the demand, but regularly have to turn down requests because we do not have the capacity.

Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their US citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are crisis and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

Increased Need for FY2018

 NYIFUP

NYIFUP attorneys have never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

Furthermore, NYIFUP has created a sea change in improved outcomes for detained immigrants. Prior to NYIFUP, a meager 3% of unrepresented detained immigrants won their removal cases.  During the NYIFUP study period, over 30% of NYIFUP clients won their removal cases.  Meaning that for every ten individuals who NYIFUP spares from deportation, nine would have been deported without NYIFUP. We know from the NYIRS study that release is a huge factor in ultimate success and that the financial and human benefits of being able to reunite families are unquestionable.  Thus, it is critically important that NYIFUP wins release for approximately 30% of its clients as compared to only 14% of unrepresented immigrants who were able to win release prior to NYIFUP.

The Council’s commitment to universal representation for every detained person who meets the income requirements of NYIFUP is critical to ensure that every person who comes before immigration court in New York City is afforded the right to make their case, no matter their background. We have had cases with clients convicted of crimes that we later successfully vacated because they were innocent or wrongly charged. By building trust and rapport with our clients, many of whom are survivors of incredible violence and trauma back in their home countries, we investigate and present evidence about why our clients’ “criminal acts” are often the direct result of the trauma they have suffered. We have uncovered that many clients were actually U.S. citizens, but often never had the resources or tools to find the evidence to prove their citizenship until they were appointed a NYIFUP attorney. NYIFUP is the strongest example of our City’s commitment to immigrant New Yorkers, made stronger still by your commitment to universal representation – the belief that all people are worthy of representation.

This year, City-wide NYIFUP providers are jointly asking for a significant increase in funding so that we can continue to provide superior legal representation to detained people facing deportation in New York City. Since the pilot program’s inception in 2013, we have had to limit the parameters of the program because we have not had the capacity to serve all of the detained people who appear at intake in Varick Street. We fear that the numbers of New Yorkers requiring detained deportation defense services will jump significantly in the months to come based on increased intake numbers since the new federal administration took office in January. This is our highest priority, as NYIFUP attorneys, social workers and paralegals are already working beyond capacity in the courts and the communities to quell fear and provide legal advice to people rightfully fearful of deportation.

The NYIFUP Coalition jointly requests $12,000,000 to fully fund the New York Immigrant Family Unity Project in FY2018 to ensure that every detained New Yorker has legal representation when facing deportation.

Continuous representation for Padilla client stuck in the justice trap

More than 20% of our criminal defense clients were born outside of the U.S. We meet and exceed the obligations required by the U.S. Constitution under Padilla, however we are not able to provide Padilla representation plus further immigration representation to all of the non-citizen clients whose immigration status is affected because they are caught in the justice trap. Many non-citizen clients who we represent in criminal or family defense cases would benefit from our continuous representation in affirmative or defensive immigration cases, including clients that may have straightforward applications that are complicated merely on the basis of an arrest or justice system involvement.

Last year, in 2016, we were able to provide these Padilla plus integrated immigration services to 216 clients referred to my team from other practice areas. We believe that we have double that number of clients who could benefit from Padilla plus additional immigration services, if not more. Indeed, we used to have a waitlist for these services but no longer keep one because, unless a case is an emergency, we do not have the capacity to take on additional representation.

The most efficient way for the City to fund immigration legal services for people with criminal and family court involvement is to fund continuous representation for Padilla clients through the criminal and family defense contracts negotiated and administered by the Mayor’s Office of Criminal Justice (MOCJ). As noted above, we are unable to serve hundreds of non-citizen justice trapped clients who come through our doors every year because we do not have the in-house resources to help all of our clients address their unique immigration needs.

The Padilla plus integrated immigration services that we did last year was funded jointly by Immigrant Justice Corp, the New York State Office of Indigent Legal Services, the federally funded Community Service Block Grant administered by HRA, and City Council. First of all, these funding sources each have their own limitations and, like all of the service providers here today, we spend a significant amount of time applying for and reporting on various small funding sources. Instead, if we are able to negotiate Padilla plus integrated immigration services into our MOCJ defender contracts as critical to minimizing collateral consequences in the same way that social workers and housing attorneys are, we will be better able to serve our clients stuck in the justice trap and maintain a continuity of representation that is impossible with year-to-year funding streams.

Immigrant Opportunities Initiative (IOI)

Even if the Mayor’s Office of Criminal Justice does not fund Padilla plus integrated immigration services representation through our criminal and family defense contracts, the City Council and the Mayor can demonstrate their commitment to untangling immigrant New Yorkers from the cycle of the justice trap by granting our request for IOI funds.

This year Brooklyn Defender Services requests $200,000 for our Immigrant Youth and Communities Project to provide immigration legal services to low-income Brooklyn youth and adults. With IOI funding, BDS can maintain and grow our Project staff to provide community education, legal screening, advice and full representation to low-income Brooklyn immigrant youth and adults borough wide, in their pursuit of affirmative immigration benefits such as citizenship, lawful permanent residence, asylum, Special Immigrant Juvenile Status, special trafficking and victims’ visas, VAWA relief, TPS, and DACA, and in their defense against deportation in non-detained deportation proceedings. Over the past few months, our office has received increasing requests from the community to present Know Your Rights trainings, immigrant family emergency preparation guidance and free legal services to the community. Yet since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press. We want to increase our capacity to serve New York’s diverse immigrant communities, but we require a significant increase in funding to allow us to take on even more cases outside of our criminal, family and deportation defense caseloads.

We ask that the Council support our IOI ask of $200,000 to expand our ability to provide integrated immigration legal services to our criminal and family defense clients caught in the justice trap and to provide Know Your Rights trainings and legal screenings to low-income New Yorkers.

Conclusion

We believe that New York can truly become a sanctuary city, but we require significantly more funding if we are to serve the influx of community members who are already desperate for free legal services, must less the thousands more who will need our support if current enforcement trends continue. The way to help protect the rights of New Yorkers is by ending Broken Windows policing, removing ICE from our courthouses, shelters and other city buildings, and providing immigrant communities with education, legal counsel and support. BDS works to support immigrants and their families and communities every day, but the need for our services and the services provided by the dozens of other legal service providers and grassroots organizations is more acute than ever. We hope that you will support our budget asks and enable us to continue to ensure the best possible outcomes for our most vulnerable clients and their families.

[1] All names have been changed to protect our clients’ identities.

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.

[3] Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[4] Kirk Semple, Advocates Seek to Make Courthouses Off Limits for Immigration Officials, N.Y. Times, May 26, 2014, available at https://www.nytimes.com/2014/05/27/nyregion/advocates-seek-to-make-courthouses-off-limits-for-immigration-officials.html.

BDS IMMIGRATION SUPERVISING ATTORNEY ANDREA SAENZ TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON IMMIGRATION

TESTIMONY OF:

 Andrea Sáenz – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration

Oversight Hearing: The Impact of New Immigration

Enforcement Tactics on Access to Justice and Services

March 15, 2017

  1. Introduction

My name is Andrea Sáenz. I am the supervising attorney of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services (BDS). NYIFUP is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. I thank the City Council Committee on Immigration, and in particular Chair Menchaca, for this opportunity to testify about the impact of new immigration enforcement tactics on access to justice and services in New York City

BDS is the largest legal services provider in Brooklyn, representing nearly 40,000 low-income New Yorkers each year who are arrested, charged with abuse or neglect of their children or face deportation. Our immigration practice represents more than 1,000 immigrant New Yorkers every year by advising BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas through our Padilla Unit, providing deportation defense through the City Council-funded NYIFUP program, and providing affirmative application assistance for immigrant clients from all of BDS’s practice areas through out Youth and Communities Project. I will speak today about the trends that we are seeing across all three of our Immigration units and how they affect the communities we serve.

  1. In Criminal Court

Inability to counsel non-citizen criminal defense clients on pleas

In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.[1] One in four of BDS’s criminal defense clients are not U.S. citizens and, under the president’s new enforcement priorities, they are all now priorities for deportation by virtue of having been arrested.

Trump’s Executive Order upends the prior enforcement priorities for undocumented people and people with legal immigration status alike. It used to be that some immigrants who were convicted of minor crimes were not deemed enforcement priorities.  In addition, non-citizens were not considered priorities just by virtue of having been accused of a crime. After the new executive order, anyone with any criminal history or open charge is a priority, as well as anyone who has committed acts that constitute a chargeable criminal offense.

This sows fear and confusion for our immigrant clients. Understandably, our criminal defense clients may see their defense attorneys as agents of the state, impacting our ability to build trusting relationships that allow us to help our clients achieve their own personal goals and the best possible outcome in the case. How can they trust us if we cannot accurately advise them? Indeed, I believe that the current state of affairs endangers our ability to provide effective counsel under the standard articulated in Padilla v. Kentucky. Judges, prosecutors, court-mandated service providers and other players in the court system are likewise confused about how to handle cases involving non-citizens.

NYPD fingerprinting and Broken Windows policy leads ICE directly to our clients

NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

Courthouse Arrests

Unlike attorneys in other boroughs, we have not seen an uptick in courthouse arrests by ICE in Kings County in 2017. That being said, courthouse arrests occurred throughout the past presidential administration. Our internal records indicate more than one dozen BDS clients have been arrested in Brooklyn courthouses and taken into ICE custody in the past four years. A BDS client from Guatemala had the story of her courthouse arrest chronicled in the N.Y. Times in 2014.[3] Most recently, in November 2016, a criminal defense client who was receiving treatment services through the Brooklyn Mental Health Court was arrested by ICE in the hallway of Brooklyn Supreme Court while he waited with his attorney for his case to be called. Our client had been reporting regularly to the criminal court for the past six months in accordance with his mental health court treatment plan. Our client has mental health diagnoses and had been hospitalized just prior to his ICE arrest in relation to his diagnoses.

Recommendations:

  1. End Broken Windows Policing. The City Council must be a leader, calling upon the Mayor and the NYPD to end broken windows policing, a policy that, in criminalizing even the smallest of offenses, puts thousands of immigrants in danger.
  2. Pass legislation banning ICE from city buildings, including our courthouses.
  3. Monitor the Implementation of the Criminal Justice Reform Act. You must also ensure that the implementing language of the Criminal Justice Reform Act, passed by City Council last year, is very restrictive to require civil summonses in all but the narrowest group of well-defined cases.
  4. Work with District Attorneys to develop practices to protect immigrants. We offer our thanks to Speaker Mark-Viverito for working with the DA’s Offices to implement programs for warrant amnesties. We also ask the council to urge DA’s to expand the use of the criminal case disposition Adjournment in Contemplation of Dismissal (ACD) and allow defendants to enter into diversion programs without first entering a guilty plea, similar to the procedure provided by CPL 216.05(4).
  5. Urge Governor Cuomo to exercise his pardon power to protect immigrants from deportation. The City could fund community organizations or partner with pro bono law firms to file pardon applications and do pardon advocacy.
  6. Work with city agencies and community organizations to ensure that information that is disseminated to the public is accurate, especially as it relates to the immigration consequences of criminal court involvement.

 

III. In Federal Immigration Court

Rising caseloads

This month, the immigration docket at the federal courthouse at Varick Street added a third intake day. The courts are moving so quickly with cases that we cannot pick up cases fast enough. And so far, these are cases that were brought into the system during the Obama administration. We have not yet even seen the people who were arrested by ICE after President Trump took over. The third intake day is already exceeding our capacity to serve our existing clients, yet we expect further increased caseloads as we begin to see the results of the new enforcement priorities.

To make matters worse, not only are we seeing more cases, but we are seeing that ICE has become harsher towards our clients than they were even just last year.

Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. Before last week, we had not had an asylum seeker released on bond in more than six weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. We have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is secure detention. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release.

Arrests in the courthouses

Our immigration clients, like our criminal defense clients, are scared to go to court. ICE agents now roam the hallways and last fall we often observed ICE agents arresting people in the courts. This was uncommon in recent years.

ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to these check-ins, but we simply do not have the capacity to meet the need and quell the fears of our clients.

The Need for NYIFUP

NYIFUP attorneys have never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

The Council’s commitment of universal representation for every detained person who meets the income requirements of NYIFUP is critical to ensure that every person who comes before immigration court in New York City is afforded the right to make their case, no matter their background. We have had cases with clients convicted of crimes that we later successfully vacated because they were innocent or wrongly charged. By building trust and rapport with our clients, many of whom are survivors of incredible violence and trauma back in their home countries, we investigate and present evidence about why our clients’ “criminal acts” are often the direct result of the trauma they have suffered. We have uncovered that many clients were actually U.S. citizens, but often never had the resources or tools to find the evidence to prove their citizenship until they were appointed a NYIFUP attorney. NYIFUP is the strongest example of our City’s commitment to immigrant New Yorkers, made stronger still by your commitment to universal representation – the belief that all people are worthy of representation.

Recommendations:

  1. We ask that the City double current funding levels for the New York Immigrant Family Unity Project to ensure that every detained New Yorker has access to representation when facing deportation.
  2. The city should increase funding on complex cases, whether in removal defense, affirmative applications, motions to reopen and stay of removal, or even for accompaniment of people to their OSUP check-ins.

In the Community

Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press. We are doing our best to meet the demand, but regularly have to turn down requests because we do not have the capacity.

Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their US citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are panicked and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

Recommendations:

  1. We ask that the Council fund legal service providers to perform community outreach, do know your rights presentations, conduct free legal screenings, and handle both straightforward and complex cases.

Conclusion

The New York City Council has demonstrated its leadership and support for immigrants through funding to legal service providers and the creation of NYIFUP. The way to help protect the rights of New Yorkers is by providing them education, legal counsel and support, and ending Broken Windows policing. BDS works to support immigrants and their families and communities every day, but the need for our services and the services provided by the dozens of other legal service providers and grassroots organizations is more acute than ever. We look forward to keeping you abreast of what we see every day on the ground and working together to craft policy responses that will help protect immigrant New Yorkers, strengthen families and stabilize communities.

[1] Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.

[3] Kirk Semple, Advocates Seek to Make Courthouses Off Limits for Immigration Officials, N.Y. Times, May 26, 2014, available at https://www.nytimes.com/2014/05/27/nyregion/advocates-seek-to-make-courthouses-off-limits-for-immigration-officials.html.

BDS EXECUTIVE DIRECTOR LISA SCHREIBERSDORF TESTIFIES BEFORE THE STATE SENATE PUBLIC HEARING ON RAISING THE AGE OF CRIMINAL RESPONSIBILITY

TESTIMONY OF:

Lisa Schreibersdorf – Executive Director

BROOKLYN DEFENDER SERVICES

Presented before
The Senate Standing Committee on Children & Families
and
Senate Standing Committee on Crime Victims, Crime & Correction
Public Hearing
on
Raising the Age of Criminal Responsibility

February 6, 2017

My name is Lisa Schreibersdorf. I am Executive Director of Brooklyn Defender Services (BDS). BDS provides multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for tens of thousands clients in Brooklyn every year. Our office has a specialized adolescent unit, called the Brooklyn Adolescent Representation Team, which represented more than 1900 13- to 17-year-olds in Brooklyn criminal and Supreme Court in 2015. In 2016 that number fell to just over 1400. The vast majority of our adolescent clients are charged with misdemeanors and last year only a handful of our clients were sentenced to upstate prison time. At any given time about thirty of our adolescent clients are detained pre-trial at Rikers Island.

I thank the Senate Standing Committee on Children and Families and the Senate Standing Committee on Crime Victims for inviting me to speak today about raising the age of criminal responsibility in New York and its impact on the young people that BDS attorneys currently represent.

There is no doubt that New York can and must do better for young people in the criminal justice system. First and foremost, any legislation must involve removing youth from the custody of local jails and NYS Department of Corrections and Community Supervision (DOCCS) prisons as quickly as is feasible and transferring them to safer and more rehabilitative youth facilities. The horrors that 16- and 17-year-olds suffer in adult jails and prisons are well documented and are discussed in detail in the Governor’s own Commission for Youth, Public Safety and Justice Report issued in 2015. Over the past few years advocates across the state have done an incredible job of educating the public and policymakers about the significant harm that 16- and 17-year-olds suffer in adult jails and prisons. We are deeply grateful for their constant efforts to advocate for the immediate removal of youth from adult facilities.

However, as the attorneys who represent these young people in court, we are deeply concerned about any proposal that would harm the tens of thousands of 16- and 17-year-olds who are never exposed to jail or prison time in the adult system, but could potentially face those exact penalties in family court under previous Raise the Age proposals. Yes, we must remove the minority of youth who will be incarcerated from adult facilities, as soon as possible. But we firmly believe that the legislature must not sacrifice the welfare of the vast majority of youth whose cases would be transferred to the more draconian and less transparent Family Court system in its efforts to “raise the age.”

Furthermore, any legislation that intends to improve outcomes for adolescents must navigate the reality that both our adult and juvenile justice system are deeply racist and disproportionately harmful to Black and Latino youth. While only 64 percent of New York City youth are black or Latino, they make up 88 percent of the youth arrested in the city, 92 percent of the youth detained pre-trial, 90 percent of the youth placed in non-secure facilities and a shocking 97 percent of New York City youth in secure Office of Children and Family Services (OCFS) facilities. Some upstate counties have studied and observed even more disparate outcomes. According to the New York State Juvenile Justice Advisory Group, black youth in Monroe County were 20 times more likely than white justice-involved youth to be admitted to secure detention. In Onondaga County, black youth comprised only 15 percent of the county’s youth population and only 38 percent of the City of Syracuse’s youth population, but they represented almost three‐quarters (73%) of the admissions to secure detention in 2010. Black youth in Onondaga were thus detained at a rate almost five times as high as their proportion in the county’s population. In New Jersey, WNYC just exposed that in some counties, family court judges are twice as likely to approve requests from District Attorneys to prosecute black children as adults than for white or Latino kids. BDS is deeply concerned about any legislation that will give judges more power to sentence youth harshly without providing any additional procedural safeguards to limit racial bias and the potential for incarceration and harsher treatment for young people of color.

Not surprisingly, some states that have raised the age are now faced with the reality that removing cases to an imperfect juvenile court system does not always create better outcomes for youth. States that studied the problems with their delinquency system and used raise the age legislation as an opportunity to improve how they treat adolescents in Family Court have fared much better. BDS calls upon the legislature to work with defenders, the people who have spent their lives fighting for young people in court, to pass raise the age reform that will, beyond ensuring that no young person is worse off than they are under the current law, that New York leads the way in the creation of an adolescent justice system that meets the unique needs of older adolescents in line with modern neuroscience and social science research.

We propose two options for the legislature:

1. Move all youth under the age of 18 into Family Court, no matter what crime they are charged with, and amend the Family Court Act to ensure that youth do not receive harsher punishments in family court than they do in adult court.

Sending all 16- and 17-year-olds to Family Court would allow judges to see the wide range of adolescent behavior and allow them to better discern between normal but inappropriate adolescent behavior, like taking another student’s backpack or cell phone at school, and the small percentage of young people who actually commit serious crimes, like rapes and murders. If the ideological underpinning of raise the age is that adolescents are neurologically different than adults and thus less culpable for their actions, then the same holds true for adolescents who commit serious crimes. We believe that if the courts saw the whole spectrum of adolescent behavior, young people would not be punished for low-level crimes with extended terms of probation with onerous conditions or be sent to placement as they often are today.

Furthermore, the legislature should take away the power of Family Court judges to punish a child more harshly under the Family Court Act than they would be able to punish an adult, for the same action, under the Penal Law and the Criminal Procedure Law. If we are committed to raising the age to promote better outcome for youth and communities, then we must also make long-overdue changes to New York’s Family Courts to ensure due process protections, fairness and transparency for all youth, including younger teenagers.

You must also provide funding for more judges and court staff, as our state’s family courts are severely under resourced and overcrowded. Currently, Article 10 child welfare cases can take well over a year from opening arguments until a judge’s decision. Vulnerable families with cases in other parts of the family court system should not be further harmed because of any raise the age legislation.

2. In the alternative, BDS proposes the creation of hybrid adolescent courts where judges would have the authority to act under either the Criminal Procedure Law or the Family Court Act.

Because of many of the systemic problems ingrained in our family courts, we propose that New York institute adolescent courts that combine the protections of the adult criminal system with the programming and possibilities for rehabilitation and sealing in the family court. The court would provide a series of options for quick resolution prior to invoking the highly intrusive procedures in the Family Court Act. Adolescents would maintain their constitutional rights to a jury trial, to be free from self-incrimination and the ability to plea bargain. However, no adolescent should be eligible for adult sentencing, and certainly no adolescent should be eligible for a life sentence. The default should be that most adolescents would avoid incarceratory sentences altogether, and the court would be resourced with alternative to incarceration programs to ensure that even more youth diverted from possible jail and prison sentences. BDS testified in detail about what such a court could look like at the New York City Council Hearing last month. A copy of that testimony is available at: http://bds.org/wp-content/uploads/2017.01.19-City-Council-testimony-on-RTA.pdf.

Alternative Legislative Solutions
Fortunately, the legislature already has a bipartisan model for such legislation that could serve as an important starting point for a more nuanced raise the age conversation. We would ask your committees to take a look at S. 7394 (Saland)/A.10257 (Lentol) from 2012 and S. 4489A (Nozzolio)/A.7553A (Lentol) from 2013. The bills were iterations of Former Chief Justice Lippman’s Raise the Age Proposal, titled the “Youth Court Act” that would establish a new “Youth Division” to adjudicate cases involving 16- and 17-year-olds and combine the best features of the Family Court and the criminal courts.

Importantly, the 2012 bill required young people tried in the youth part to be held in juvenile facilities, but the 2013 bill did not. BDS firmly believes that 16- and 17-year-olds who have their cases heard in this specialized court part must be removed from adult jails and prisons. Any raise the age legislation that will garner our support must move youths charged with crimes committed when they were 16 or 17 years old into juvenile facilities.

BDS notes that both the 2012 and the 2013 Lippman bills would exclude youth charged with violent crimes from having their cases heard in the part. For the same reasons stated above, it is critical that judges in this part see the wide range of adolescent behavior, including violent criminal behavior. Instead of having the Family Court Act sentencing procedures apply, however, the court could apply the Juvenile Offender Act sentencing to youth charged with violent crimes and be entitled to serve out their sentences until their 21st birthdays in rehabilitative youth facilities. We strongly recommend that the legislature insist that all cases involving 16- and 17-year-olds go to the youth division, as the Lippman bill calls it, and that those young people not face adult sentencing if convicted.

Finally, additional steps should be taken to mitigate the long-term consequences of court contact for 16- and 17-year olds, including raising the age of youthful offender status, opportunities for sealing of prior criminal records, and the elimination of fines, surcharges and civil judgments previously imposed.

Problems with the Governor’s Raise the Age Proposal (2017)
BDS has serious concerns about the Governor’s Raise the Age proposal as drafted in the FY2018 NYS Executive Budget Education, Labor and Family Assistance Article VII Legislation. We raised these concerns with the legislature and executive branch in previous years yet they remain unaddressed in the current version.

Our gravest concern is that the young people most in need of the rehabilitative programming available in the Family Court are excluded from the court altogether and would have their cases heard in adult court as Juvenile Offenders under a new, expanded list of crimes. But perhaps more troublingly, the bill would move youth charged with low-level crimes to Family Court, where they face long periods of probation and placement for misdemeanor crimes where the vast majority receive an Adjournment in Contemplation of Dismissal (ACD) on the first court date. Furthermore, according to the Governor’s Commission report, 75 percent of 16- and 17-year-olds already have their convictions converted to Youthful Offender adjudications, sealing their conviction from the public and protecting them from adult sentencing ranges. The Governor’s bill, and indeed many of the bills put before the legislature in previous sessions, would subject this group of young people, the vast majority of 16- and 17-year-olds charged with crimes in New York, to harsher sentencing under the Family Court Act.

While it may seem counterintuitive, the research is clear: when it comes to youth, it is best to steer non-violent youthful offenders out of the justice system. Studies show that the vast majority of first-time offenders will never be arrested again, regardless of any intervention they receive. Almost 70 percent of youth who are arrested once are never arrested again. 20 percent of young offenders are re-arrested two or three times, with only six to eight percent falling into the category of three arrests or more. Re-arrest rates appear to mirror the reality in the streets. A recent study found that 91.5 percent of justice-involved youth reported decreased or limited illegal activity during the first three years following their court involvement. Re-offense statistics hold true whether or not first-time offenders are provided diversion interventions. What New York should be doing then, is diverting first time offenders from the system as quickly as possible, as most adult criminal courts already do in most counties in this state, and investing significant resources only in the 20% of cases that are medium or high-risk: cases involving violent or serious crimes. This bill would do the opposite.

Our concerns do not end there. This year and last year’s Governor’s budget bill would also:

• Increase the mandatory minimum for 16- and 17-year-olds convicted of B violent felonies to 5-20 years with a possible bump down if the judge determines that sentence to be “unduly harsh”, as compared to the 3.33-10 years that 14- and 15-year-old face under the existing Juvenile Offender statute.
• Expand the list of designated felonies that expose youth in Family Court to a mandatory 3-5 years in placement, harming youth in the Family Court system as compared to the existing law.
• Allow 16- and 17-year-olds to be charged with violations of harassment and disorderly conduct in Family Court, unlike their younger counterparts, exposing older teens to greater police intervention and much harsher punishment for non-criminal acts in Family Court than they could ever face in adult court.
• There is a post-conviction sealing option in the bill, but it would require people to wait ten years before making the application for sealing, even though Raise the Age is supposed to be about ensuring that adolescents have the right to second chances in their youth.
• While the bill would technically raise the age of Youthful Offender status, it does not allow 19- and 20-year-olds to be eligible for YO sentencing and the adjudication would count against them if they were to pick up charges at a future date, in stark contrast to the existing law.
• The bill would increase the number of Juvenile Offender cases, significantly increasing the number of youth whose cases would be heard in adult court, and removing the opportunity for youth charged with more serious crimes (but not the most serious crimes) from the protections of Family Court.
• While the bill slightly increases the scope of cases that probation should be required to adjust in delinquency cases, it provides so many exceptions (and exceptions to exceptions) so as to make the new presumptions nearly meaningless.
• There is no mention of concurrent jurisdiction under both the criminal procedure law and the Family Court Act for judges in the Youth Part in Supreme.
• And finally, this bill, as compared to previous bills, puts much of the financial responsibility of raising the age back on to cash-strapped counties who can ill afford any increase in costs for the juvenile and criminal justice systems.

In contrast to the executive budget proposals, in 2014 New Jersey state bill S2003/A4299 raised the minimum age for what we in New York would call JO eligibility from 14 to 16, narrowed the list of offenses that would be JO eligible, and amended the standard governing such standards. The New Jersey bill went into effect in 2016.

Under the new law, prosecutors must prove by clear and convincing evidence that the reasons for transfer to adult court outweigh the probability of the juvenile’s rehabilitation by the use of the procedures, services and facilities available to the Family Court prior to the juvenile reaching the age of 26. The new bill also requires due process, including representation by counsel, before a young person who is confined in a juvenile facility can be transferred to an adult prison. The bill also eliminates the use of solitary confinement as a disciplinary measure in juvenile facilities and detention centers, and places time limits on the use of solitary confinement for reasons other than punishment, such as safety concerns.

In regards to the transfer of young people most in need of the intensive services that family courts can provide, New Jersey improved their statute to make it more in line with modern brain science. In contrast, New York’s 2016 same-as bill applied the outdated existing statute to 16- and 17-year-olds and the Governor’s bill increased the list of crimes and punishments for 16/17 year-olds who would be tried as JOs. More punitive policies such as these are particularly harmful to young people of color who make up the majority of cases referred to New York’s Family Courts.

My staff and I are willing to explain further why many of these details are of concern. As the people who currently represent adolescents ages 13- to 17-years old in adult courts, we know that the details are the difference between a second chance and prison time. We firmly believe that any of our clients, no matter their age, is entitled to the protections provided to them by the New York and U.S. Constitutions. The words in the legislation matter and will have a direct impact on the young people that we are purporting to help by raising the age.

It is clear that the legislature must act to remove 16- and 17-year-olds from adult jails and prisons. But we hope that the concerns and proposals we raise today help you to move forward on legislation that, at the very least, will not make any young people worse off tomorrow than they are today, and even better, may drastically improve outcomes for all adolescents, their families and communities. New York can and should do this. Your public defenders are here to help.

If you have any questions about my testimony, please feel free to reach out to me at lschreib@bds.org or 718-254-0700 or BDS policy attorney Andrea Nieves at anieves@bds.org.

BDS SUBMITS WRITTEN COMMENTS ON NYC DOE PROPOSED AMENDMENTS TO CHANCELLOR’S REGULATIONS A-210 & A-750

COMMENTS RESPECTFULLY SUBMITTED BY:

Kaela Economos

Social Work Supervisor, Family Defense Practice

BROOKLYN DEFENDER SERVICES

And

Keren Farkas

Supervising Attorney, Education and Employment

BROOKLYN DEFENDER SERVICES 

Presented to

The New York City Department of Education

Regarding: Proposed Amendments to

Chancellor’s Regulation A-210

and

Chancellor’s Regulation A-750

December 20, 2016

 Dear Chancellor Carmen Farina:

Thank you for the opportunity to submit formal written comments on the proposed amendments to the Regulations of the Chancellor of Education relating to Minimum Standards for Attendance Programs (A-210) and Child Abuse Prevention (A-750).

BDS is a public defender organization that provides inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The BDS Family Defense practice represents almost 2,000 respondents in child welfare cases every year and has helped thousands of children remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with the Administration for Children’s Services, foster care agency workers and, when necessary, school personnel.  BDS’ civil attorneys offer collateral support to our clients in the areas of housing, public benefits and education.  Our Education Unit provides legal representation and informal advocacy, largely in the areas of special education and school discipline.  The education attorneys and social workers also work to maintain our clients’ involvement in their child’s education throughout child welfare involvement, including court ordered supervision, removal or reunification.

BDS recognizes the enormity and complexity of the Administration for Children’s Services’ (ACS) charge to protect the safety of children while also working to preserve families. Likewise, we acknowledge that schools are a centerpiece of a child’s life, and school officials have a unique vantage point into the well-being of its students.  In light of recent tragedies, this is understandably a time where ACS wants to reflect on its practices. That said, singling out horrific cases and focusing on increased surveillance of families rarely results in the kind of thoughtful reforms that keep children safe and families strong. We expect that any changes that will come from these amendments will be coupled with intensive and ongoing training to ensure school officials understand that reasonable cause to suspect child abuse or neglect is a prerequisite to any call to the New York State Central Register (SCR), independent of a student’s absences. [1]

While we recognize the worthy intentions of these amendments, we are concerned that, as written, the new guidance may encourage school officials to alert the SCR or ACS in unwarranted situations. We are concerned that the amendments ask school officials to take on CPS-like monitoring responsibilities, which seems inconsistent with the role of a school official. Clearly, strong and trusting relationships between families and school staff are crucial towards supporting a child’s education. The proposed requirements may lead parents, namely Tier 2 parents, to feel scrutinized and untrusted by their child’s school. A breakdown in the parent-school relationship can not only impact the child’s education and stability, but also discourage open communication between parents and the school. This only worsens outcomes for children and families.

We ask that the Chancellor consider the following points in this effort to create a policy that keeps students safe without further reinforcing the vulnerability of families presently or previously involved in the child welfare system.

(1) The Proposed Changes to A-210 and A-750 Improperly Place Functions of ACS onto DOE Staff

The proposed changes to A-210 and A-750 require schools to take on a number of additional tasks and roles.   Some changes expand existing responsibilities. For instance, schools already have attendance programs, including designated coordinators responsible for documenting attendance and reaching out to parents. A-210 and A-750’s recommended changes, however, specify an enhanced and graded monitoring protocol exclusively for families currently or previously involved in the child welfare system.[2] To implement the protocol, schools will receive a monthly list of its child-welfare involved students.[3]

Although we oppose the proposal, if this protocol is implemented, we expect that the monthly list of students will only be shared with staff formally responsible for attendance tracking. School officials may think a family’s current or past ACS involvement indicates issues of abuse even though the vast majority of child welfare cases involve allegations of neglect.[4] In addition, almost all child welfare cases are related to poverty and the stress that poverty brings to families.[5]   However, knowledge of child-welfare involvement may lead school staff to treat these families differently with undue hyper vigilance, leading to lack of trust and breakdown of vital relationship building between teacher and parent. Accordingly, to prevent alienating these families, the information should only be shared with those staff responsible for monitoring attendance.

Presumably, the increased focus on attendance is to verify a child’s whereabouts and safety.  However, A-750’s proposed protocol does not end at checking attendance.  A-750 III.C.3 also asks schools to conduct ongoing monitoring of child-welfare involved students.  We recognize that, as mandated reporters, school officials are required to report suspected abuse or neglect of children when presented with reasonable cause to suspect. However, the mandated reporter role does not have a monitoring or investigatory component.  The proposed amendment to A-750 imparts a new function on school staff by requiring school leadership to  “assign a school-based point” to students in all Tiers who must “make regular inquiries of classroom teachers and the school health office and update the ILOG records of these students with pertinent information about school progress or issues that arise.”

A-750’s proposed request for targeted monitoring is troubling. Monitoring a family seems at odds with educating a child.  Monitoring and investigating a child’s welfare is solely under the purview of ACS. Moreover, ACS is only allowed to engage in those functions when specific legal requirements are met.  The proposed monitoring is seemingly asking DOE to take on an ACS function.  Schools are a separate entity from ACS, and their functions should reflect that. Confusing the roles could compromise open school cultures between staff and families, while also potentially leading to unnecessary and harmful interventions for poor families.

We also want to note that DOE’s proposed new functions are, in part, duplicative of the responsibilities of ACS and foster care agency caseworkers. When families are under ACS supervision, caseworkers are already required to monitor a child’s education and progress. At many junctures, including conferences and court appearances, the caseworker is expected to provide updated information on school matters. We understand that this responsibility has typically been executed in collaboration with the DOE. Likewise, we acknowledge that caseworkers sometimes fall short of this responsibility. The proposed protocol, however, seems to be putting the onus of the responsibility on DOE, rather than putting the emphasis on improving ACS’ training and accountability.

Recommendations:

  • ACS and DOE should only share the list of ACS-involved students with staff responsible for monitoring attendance. Strict procedures should be implemented to ensure the information is otherwise kept confidential.
  • The proposed change, A-750 III.C.3, requiring ongoing monitoring, should be removed.
  • ACS and DOE should provide comprehensive training to DOE staff to understand the general trajectory of an ACS case and the ramifications of a call to the SCR. Beyond the general training, DOE staff should be instructed about the complexities of ACS involvement from parents involved in ACS proceeding.

(2) The proposed changes to A-210 and A-750 could result in an unlawful extension of supervision over families with closed cases, potentially resulting in unnecessary ACS involvement

A-750’s new “Policies and Procedures for Escalating Absence Concerns Regarding Students Involved with the Administration for Children’s Services” requests oversight over families no longer involved with ACS. Specifically, Tier II includes families who were “the subject of an ACS investigation” that was substantiated within the current or prior school year. [6] From the day they receive the case, ACS has 60 days to complete an investigation.  At the conclusion of the investigation, ACS determines whether the allegations are indicated or unfounded. If the allegations are substantiated, ACS may file a court case, offer voluntary preventive services, or close the case. A court order is the only avenue to extend supervision against a family’s consent.

All Tier 2 families have closed ACS cases. The cases are closed because there was no indication or legal basis to keep them open. The families are then no longer subject to involuntary supervision from ACS or, presumably, any city agency. By including Tier 2 families in the tiered response protocol, however, school officials are essentially being asked to continue supervision of these families without cause, which is inappropriate. Although we recognize that school officials are mandated reporters, the inclusion of Tier 2 families in the protocol unnecessarily takes school officials beyond that role.

We fear the implications of this policy because it puts a mark on families who, presumably, already cooperated with ACS, engaged in services, or otherwise merited discontinued ACS involvement regardless of what’s happening with the family. This monitoring also stigmatizes the family. Neither DOE nor ACS has put forward evidence that these families are more likely to abuse or neglect their children in the future. The policy’s design, however, has the capacity to alienate these families and build distrust between schools, its families and its students. At the extreme, we are also concerned it will lead to repeated and unnecessary ACS involvement.

Recommendation:

  • Families who are no longer under involuntary ACS supervision, or Tier 2 Families, should not be included in the proposed protocol under Chancellor’s Regulation A-750 § III.

(3) Proposed Amendments to A-210 and A-750 may lead to an influx of SCR calls

Mandated reporters are required to call the SCR whenever there is reasonable cause to suspect child abuse or maltreatment.  While A-750 refers to the reasonable cause standard, the language and framing of the protocol will likely confuse a lay person as to whether reasonable cause remains the threshold requirement to call the SCR. Further, because the proposed changes single out child-welfare involved families, it calls to reason that schools will apply increased vigilance and suspicion over these families, leading to more calls to the SCR.

An influx of unwarranted calls to the SCR can have detrimental impacts on the overall system and individual families.  More calls to SCR do not necessarily enhance child safety. Rather, it can backlog the already overburdened system, depriving those families most in need of attention and support.  For the individual family, it can result in unnecessary and potentially harmful intervention. It may also lead to a breakdown in the relationship between the family and the school.

Needless to say, this policy will also disparately impact families of color. Racial disparities in the child welfare system are well documented. Implicit bias in mandated reporting results in over reporting of families of color to ACS for suspected abuse or neglect.[7] This phenomenon occurs without any evidence to suggest that children of color are more likely to be abused or neglected. Implicit bias at the point of referral, investigation and substantiation is already a problem plaguing our child welfare system.[8]  Accordingly, if school personnel are being asked to conduct more in depth monitoring of students, beyond their role as mandated reporters, and fulfill the policy’s protocol, DOE and ACS should provide the necessary bias training to prevent disparate impact on families of color. For instance, DOE staff should be required to attend training around implicit bias and cultural competency to help minimize the potential of racial bias in reporting and monitoring of families.

After calling the SCR or identifying an attendance issue, the tiered response protocol and A-750 III.D. also instructs DOE to reach out to the appropriate ACS entity.[9] In several instances, the protocol directs DOE and ACS to convene meetings. For instance, if DOE calls the SCR regarding a Tier 1 family, ACS is directed to conduct a safety assessment and possibly a school conference.[10] Given that these families may have existing court cases, the protocol should require ACS to contact the parent’s attorney and other attorneys on the matter before scheduling a conference in these cases. For Tier 3 families, the protocol also suggests that case planners schedule a meeting with the school to address the child’s absences.[11] As these children are in foster care, we ask that case planners notify the parents of any school meetings to ensure their involvement in educational decision-making.

The tiered response protocol also appears to ask schools to contact ACS when the reasonable cause standard is not met.  For instance, even when schools are satisfied with a family’s explanation for a child’s absence, the protocol instructs schools to contact ACS when they believe “further intervention and coordination with ACS would address the reasons for absence.”[12] This guidance applies to families without active ACS involvement. Specifically, for Tier 2 families, it directs schools to contact ACS’ Office of Education Support and Policy Planning.[13] Then, ACS is instructed to work with the school to determine whether there is an open preventive services case and, if not, whether it is feasible to call the SCR. ACS will also coach schools on what information to provide to the SCR.[14]

There are certainly scenarios where well-meaning school officials want to involve ACS to help a family get support. We recommend that any such decision, however, be made in collaboration with the family. Preventive services are indeed a valuable way to connect families with services so that ACS involvement is unnecessary. However, preventive services are most effective when they remain voluntary and community based.  Schools should be connected with community-based organizations that provide families with support. Additionally, they should only be utilized when there is a palpable way that the agency could support the family. When the reasonable cause standard is not met, schools should not be encouraged to reach out to ACS without consulting the family first.

An overreliance on preventive services- often only to provide additional monitoring of families- has caused major backlogs and delays in families receiving preventive services whether mandated or voluntary.  This clogged pipeline makes it even more difficult for families who really need and want preventive services to get them. We have testified extensively about preventive services before the New York City Council. The testimonies can be found online at http://bds.org/bds-family-defense-social-work-supervisor-kaela-economos-testifies-before-the-new-york-city-council-committee-on-general-welfare-on-preventive-services/ and at http://bds.org/wp-content/uploads/3.17.15-NYC-Council-Committee-on-General-Welfare-Testimony.pdf.

Recommendations:

  • ACS and DOE should provide comprehensive training to DOE staff to understand the required standards for calling the SCR, as well as implicit bias and cultural competency.
  • When the reasonable cause standard is not met, DOE staff should be required to consult with families and get consent before contacting ACS.

Conclusion

While we understand DOE’s and ACS’ earnest intention with in developing this policy, we have questions about its likely implications. Specifically, we are concerned that it is overreaching and could lead to unnecessary intrusions into the lives of poor families, without having a palpable impact on the safety of children in New York City.  We hope the DOE will consider our suggestions in finalizing the language of Chancellor’s Regulations A-750 and A-210.

Please do not hesitate to reach out to Keren Farkas, Supervising Attorney, at kfarkas@bds.org or (718) 254-0700, or Kaela Economos, Social Work Supervisor at keconomos@bds.org or (347) 592-2554 with any questions.

 

[1] New York Social Services Law § 413.

[2] Chancellor’s Regulation A-210 § III.D; Chancellor’s Regulation A-750 § III.

[3] Chancellor’s Regulation A-750 § III.

[4] New York City, Keeping Track Online: The Status of New York City Children (2013), available at http://data.cccnewyork.org/profile/location/1/city#1/new-york-city/1/1193,1194/a/a.

[5] Id.

[6] Chancellor’s Regulation A-750 § III.B.2(b).

[7] Jina Lee, et al., “Implicit Bias in the Child Welfare, Education and Mental Health Systems,” Nat’l Center for Youth Law [2-5]

[8] Id.

[9] Although not included in the proposed changes Chancellor’s Regulation A-750 or Chancellor’s A-210, this guidance is included in the ACS and DOE October 29, 2016 “Joint Statement Introducing a Tiered Response Protocol for High-Risk Cases of Educational Neglect and Unexplained Absence,” disseminated to all ACS and DOE staff.

[10] See “Joint Statement Introducing a Tiered Response Protocol for High-Risk Cases of Educational Neglect and Unexplained Absence,” Commissioner, NYC ACS & Chancellor, NYC DOE, III.E.ii.c.i (October 29, 2016)

[11] Id. III.E.vi.

[12] Id. III.B.iv.b.

[13] Id. III.E.iii.

[14] Id. III.E.iii.b.

BDS FAMILY DEFENSE SOCIAL WORK SUPERVISOR KAELA ECONOMOS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL COMMITTEE ON GENERAL WELFARE ON PREVENTIVE SERVICES

TESTIMONY OF:

Kaela Economos

Social Work Supervisor, Family Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on General Welfare

Oversight Hearing on

Preventive Services at the Administration for Children’s Services

 December 14, 2016

My name is Kaela Economos and I am a Social Work Supervisor in the Family Defense Practice at Brooklyn Defender Services (BDS).  BDS is a public defender organization that provides inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The BDS Family Defense practice represents almost 2,000 respondents in child welfare cases every year and has helped thousands of children remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with the Administration for Children’s Services and foster care agency workers.

We thank the New York City Council Committee on General Welfare and, in particular, Chair Stephen Levin, for the opportunity to testify today. I will address both the quality and effectiveness of preventive services available to low income communities in New York City and offer BDS’s support for Resolution 1322 and Introductions 1062 and 1374, along with our reactions and recommendations to the bills.

Background
BDS’s family defense practice regularly interfaces with preventive service programs in three situations: (1) when ACS files a neglect petition against a parent whose family is already receiving voluntary preventive services because the agency believes that those services are not adequately addressing safety concerns in the home; (2) when preventive services are required by the Family Court in the context of neglect cases in order to keep children home with their families instead of being removed; and (3) when preventive services are required by the Family Court in order for children to return home to their families.

BDS strongly supports funding preventive services robustly for the intended purpose of these programs, which is to prevent the need for children to be placed in foster care and to reduce the time children spend in care.  In large measure, preventive service programs have been effective in helping to reduce the foster care population which has been reduced from almost 40,000 in 1999 to fewer than 10,000 children in foster care in New York City today.[1]  Keeping families together or reuniting families with services in place instead of placing children in foster care prevents the harm and trauma of removing children from their families and the harm and poor outcomes that children in foster care face.[2]  This also conserves limited social services resources and reduces the burden to taxpayers.

The goal of preventive services is to connect families with services and benefits so that ACS involvement is unnecessary to keep children safe. Ideally, preventive services would give agencies the ability to connect with the community in meaningful ways so that families could turn to them before ACS becomes involved in a crisis. If families could identify preventive services as a supportive option in their communities when they are having problems, much of ACS involvement could be avoided. Instead, ACS mandates preventive services after problems are identified which becomes another intrusive and invasive system in our clients’ lives which breeds suspicion and undermines the potential for meaningful and beneficial relationships.

Preventive services are most successful when they remain voluntary and are community based. The most effective preventive agencies are ones that have deep roots in the neighborhood they serve and have an established track record with the community. This results in communities and neighbors trusting them, which enables families to seek and receive help before anything rises to ACS involvement or mandated services. For example, our Mandarin-speaking families report the greatest satisfaction in cases involving Mandarin-speaking preventive service workers and organizations. When our clients feel like the preventive service agency understands them and their community, and is working with them, and not against them, our clients are more successful in achieving goals for their families.

Preventive service programs can and should be delivered more effectively to help families provide safe and stable homes for their children and to reduce the number of children who enter foster care. In our experience, monitoring requirements placed upon preventive services agencies;  formulaic service planning that does not take into account the complex needs of at risk families;  and delays in assigning preventive services to families in need all have contributed to reducing the effectiveness and availability of preventive service programs.  BDS testified extensively on these points during the preliminary budget hearing before this Committee in March 2015 and offered specific recommendations for ameliorating each of these concerns. A copy of our testimony is available online at http://bds.org/wp-content/uploads/3.17.15-NYC-Council-Committee-on-General-Welfare-Testimony.pdf.

My testimony today revisits some of these issues with new case examples. Suffice to say that the issues we reported on in 2015 have not yet been resolved. Indeed, ACS’ reaction to the recent tragic death of Zymere Perkins has been to remove even more children from their homes. These are the highest numbers of filings and removals that we have seen in all of our nine years of representing indigent parents in Family Court.

Delays in Assigning Preventive Services to Families in Need
As we noted in our March 2015 testimony, the lag between preventive services need identification and service provision often spans months. In some cases, this gap between identification and provision results in ACS seeking to remove children from their families unnecessarily. For example, in one case alleging inadequate housing conditions and leaving an 11-year old alone with younger children, ACS made a removal application where there had been a prior agreement to arrange preventive services that were not put in place in a timely manner. Because the delays in arranging preventive services are well-known in Family Court, judges are often reluctant to return children to their families, regardless of whether there is a plan that preventive services will quickly respond to the families’ service needs, leading to children staying in foster care for longer than necessary. Since only ACS is authorized to make the referral in cases where the judge mandates preventive services (non-voluntary cases), often our clients have no way to access services until ACS puts them in contact with the preventive services agencies.

In July 2015 ACS removed three-month-old twins from the care of their father, a BDS client, without a court order and placed them at the ACS Children’s Center.  The reason ACS gave for the removal was that our client had left the babies in the care of their mother who was not supposed to be alone with the children.  The Family Court held a hearing at which the ACS worker testified that she had requested preventive services for the family months earlier but they had yet to be assigned to an agency.  She admitted that our client had requested assistance with housing and childcare which she never provided.  He was forced to enter the shelter system with his children, and the shelter rules prohibited him from leaving the children with anyone other than their mother while he went to work in the evenings.  The hearing lasted six days, during which time the babies remained at the Children’s Center.  At the conclusion of the hearing, the Family Court denied ACS’ application to remove the babies and returned them to their father’s care.

More than a year later, we see that our clients still suffer significant delays in receiving necessary preventive services.  In late October BDS picked up a case involving a client whose children were released to her with court-ordered supervision. ACS spoke about providing the family with preventive services and our client kept following up with CPS as to status of the preventive services and whether or not ACS sent in a request, but ACS had not done so. At this point, our client decided to get the ball rolling and enrolled one of her sons to receive counseling due to behavior issues and her other son to get an appointment for early intervention, all on her own. Our client returned to court in December and her attorney informed the court about the delay in the preventive services. ACS stated that they only put in the request for services at the end of November, a full month after the first court date. Upon hearing this, the CPS supervisor reported that the family would be transferred to a Family Support Unit (FSU) worker. FSU workers are similar to preventive services workers, but in-house for ACS. FSU workers are often assigned to families after the CPS investigation where there is no foster care involvement but there is still court-ordered supervision of the family.

Recommendation: Preventive workers should be immediately assigned in all cases where families indicate they are willing to participate in preventive services. Worker performance should be assessed on the time between identification of family needs and the provision of services.

Overuse of Preventive Services Causes Backlogs
One major concern is that we often see ACS ask judges in Family Court to mandate preventive services, often without an articulable reason as to why the family needs services or how these specific services can benefit the family when ACS is already supervising the home and/or the parent is receiving other services such as counseling. When ACS asks for unnecessary services, this clogs up the pipeline and makes it even more difficult for families who do want and would benefit from specific services to get the help that they want and need.

As any social service provider will tell you, and social science research confirms, that people are best served when they are able to receive voluntary services narrowly tailored to their needs.[3] Anything beyond this scope often results in worse outcomes for the intended recipient, and greater costs for the system as a whole.

Recommendation: In Family Court, ACS should be required to articulate a reason for preventive services if they are requesting them with the goal of limiting the number of families who receive preventive services to only those who really need them.

Concern about the newly required Preventive Service Termination Meetings
We are concerned that the newly required Preventive Service Termination meetings that are outlined in ACS’s draft Integrated Family Team Conference Protocol that was issued on October 24, 2016 will have unintended negative consequences for families seeking preventive services whether voluntary or mandated. Not only do these new conferences increase the number of meetings the family must attend, they may result in unnecessary delays in the provision of preventive services, especially for homeless families or families with unstable housing.

Recently, we worked with a client who had preventive services in place for her family. The family was then transferred to a different shelter that was outside the catchment area of the assigned preventive service agency. Preventive services could not continue until the family was referred to a new provider in the new catchment areas, but a new referral could not be made until the former provider was able to close out their services with the family. Working under the new IOC conference protocol, this could not happen until there was a termination conference. There were delays in scheduling the service termination conference, including the lack of an available ACS facilitator. Instead of a seamless transition to new preventive services, the delay of the termination meeting, coupled with the long time frame for the preventive service planning conferences, resulted in several weeks of the family not getting any preventive services through no fault of their own.

Recommendation: ACS should reconsider the protocol around preventive service conferences to make service provision more seamless and to allow for a different process for families who are participating in preventive services. At a minimum, a conference should not be held if a family is terminating services due to a change in catchment area.

Concern about the Expiration Date on Mandated Preventive Services
Many of the evidence-based preventive services programs have strict time limits for how long the cases can remain open and it is very difficult to keep the cases open longer.  Time limits mandating the termination of services create a revolving door in the child welfare system. Families must stop services, not because they have completed their goals but because their time is up. Inevitably they return to services because the issues that led to ACS involvement in the first place have not been resolved.  The time limits also undermine the potential for meaningful relationships. Many of these families have had numerous negative interactions with the system and building trust is already difficult so these timeframes are just too short to do any long-lasting substantive work.

Recommendation: ACS should work with families to ensure they receive the voluntary services that they need, as long as they want and need them. However, mandated services should not be extended involuntarily to allow ACS constant intrusion in our clients’ lives.

Bills
Resolution No. 1322- Resolution calling upon the New York State Legislature and the New York State Office of Children and Family Services to develop a parents’ bill of rights to be distributed at initial home visits in child protective investigations and made available online

BDS strongly supports this bill. Connecticut passed a similar bill in 2011 and the Department of Children and Families now shares the bill of rights on their brochures and materials that they give to families. The Connecticut bill already serves as a successful model for implementation in New York. We would similarly urge that the New York State legislature work with organizations like ours that represent parents in Article 10 proceedings to ensure successful rollout of the bill.

Introduction 1062 – A Local Law to amend the administrative code of the city of New York, in relation to requiring the administration for children’s services to provide language classes to certain children in foster care

BDS strongly supports this bill without comments or recommendations.

Introduction 1374 – A Local Law to amend the administrative code of the city of New York, in relation to the utilization of preventive services

BDS strongly supports this bill to require reporting on the utilization of preventive services. However, we raise the following issues to the Council’s attention:

(1) We are concerned that the burden of reporting will fall on the preventive agencies to track and provide this data to ACS.
Preventive service agencies already are understaffed and loaded up with paperwork. We raise this issue in hopes that the Council will try to work with the agencies to ensure that the new reporting bill does not further limit the agencies’ ability to serve New York’s most vulnerable communities.

(2) ACS should be required to report on how many cases are voluntary versus mandated.
Preventive services are most successful when they remain voluntary and are community based. Data collection about voluntary versus mandated services would allow policymakers to assess which preventive programs have the most voluntary clients and whether incidences of ACS involvement are lower in those communities. We could also then assess how many clients avoid court when a preventive program is already involved or initiated early in the investigation.

(3) ACS should also track and report on data on the length of time between (1) when the court orders services, (2) the ACS referral to assignment of an agency, and (3) actual provision of services.
This recommendation seeks to gather data about the bureaucratic delays we discussed above.

(4) ACS should track and report on data specifically broken down by preventive service catchment areas, not just on preventive program types and slots.
This amendment will allow policymakers to see where preventive services are most utilized, where there may be waitlists for services, where there may be under-utilization and will help policymakers to determine sensible preventive service resource allocation.

(5) ACS should report how many families are receiving each of the services listed in 18 NYCRR 423.4(d)(1).
New York law requires that families receiving preventive services to prevent foster care placement have access to day care; homemaker services; parent training or parent aide; transportation; clinical services; respite care and services for families with HIV; emergency services, including cash or the equivalent thereto, goods and shelter; and the ACS Housing subsidy. Int. 1374 should be amended to ensure that ACS reports on how many families need each of these services and how many receive them.  This data should include not simply whether a family was referred to another agency to receive these services, but also whether the services were in fact provided and if not, what advocacy was done by the preventive agency to ensure service provision.

Conclusion
New York City’s progress in dramatically reducing the number of children in foster care over the past ten years has been possible through the increased availability of preventive services to families in need of support, earlier identification of such families, and greater accountability within the Family Court Systems to ensuring that appropriate service plans are put in place.  These trends must be applauded and not rolled back in response to recent child deaths.  We are grateful to the Council for your attention to preventive services and for offering legislation that seeks to shed light on how these services support families in need and limit the need for removal to the foster care system. Please do not hesitate to reach out to me at keconomos@bds.org or (347) 592-2554 with any questions.

[1] Center for New York City Affairs, The New School, Watching the Numbers:  A Six-Year Statistical Survey Monitoring New York City’s Child Welfare System (November 2016), available at https://static1.squarespace.com/static/53ee4f0be4b015b9c3690d84/t/5849a22f725e254385d753eb/1481220657883/FINAL_Watching+the+Numbers_2016.pdf.

[2] In our testimony submitted to this Committee in October, we noted that although most foster parents are well intentioned and provide a safe environment, there is overwhelming evidence of the negative outcomes of foster care placements.  Children placed in foster care are more likely to experience psychopathology than children who are not in foster care, with children in foster care being between 2.7 and 4.5 times more likely to be prescribed psychotropic medication than children not in foster care, according to one study.  Studies have found that rates of safety are actually worse for children in foster care than for those in family preservation programs.   For example, one study shows that children are actually twice as likely to die of abuse in foster care. New York State ranks the third worst for rates of substantiated or indicated reports of maltreatment of children in foster care.  Even these statistics are likely underestimations, as “abuse or neglect by foster parents is not investigated because agencies tolerate behavior from foster parents which would be unacceptable by birth parents.” Children who are on the margin of placement tend to have better outcomes when they remain at home as opposed to being placed in out-of-home care. In one study, a researcher looked at case records for more than 15,000 children, segregating the in-between cases where a real problem existed in the home, but the decision to remove could go either way. Despite the fact that the children who remained home did not get extraordinary help, on measure after measure the children left in their own homes fared better than comparably maltreated children placed in foster care. All of this evidence demonstrates that keeping children together with their parents, even within homes that are not ideal, is usually preferable to foster care placement. See Testimony of Brooklyn Defender Service and The Bronx Defenders before the NYC Council Committee on General Welfare October 31, 2016, pp. 5-6 (internal citations omitted).

[3] See, e.g., National Quality Improvement Center, Differential Response in Child Protective Services:  A Legal Analysis (Sept. 2009), available at http://www.ucdenver.edu/academics/colleges/medicalschool/departments/pediatrics/subs/can/DR/qicdr/General%20Resources/General%20Resources/docs/differential-response-in.pdf.

BDS EDUCATION UNIT SUPERVISING ATTORNEY KEREN FARKAS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON EDUCATIONAL SERVICES FOR DETAINED AND PLACED YOUTH

TESTIMONY OF:

Keren Farkas – Supervising Attorney, Education Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Juvenile Justice, Education, and Fire and Criminal Justice Services

Oversight Hearing on

Educational Services for Detained and Placed Youth

November 30, 2016

My name is Keren Farkas. I am the head of Brooklyn Defender Services (BDS) education unit. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for tens of thousands of clients in Brooklyn every year. I thank the City Council Committees on Juvenile Justice, Education, and Fire and Criminal Justice Services for the opportunity to testify today about the quality of educational services for detained and placed youth.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as a public defender office in Brooklyn.  We have developed a model of specialization to best represent certain types of clients, including adolescents.  Through specialized units of the office, we provide extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way. This includes helping young people and their families navigate the public education bureaucracy during and after contact with the criminal justice and family court system.

BDS’ Education Unit provides legal representation and informal advocacy to our school-age clients. We work with young people impacted by the child welfare and criminal justice systems, including youth detained at Rikers, Horizons and Crossroads.  As a legal and social work team, we work to improve our clients’ access to education, and a significant portion of our advocacy relates to school discipline, special education, reentry and alternative pathways to graduation.

BDS is grateful to the City Council and Councilmember Dromm for introducing a new piece of legislation, Int. No. 1148, that would require the Department of Education to report to City Council about East River Academy. We support the legislation and hope the enhanced transparency will lead to better educational services and outcomes for youth at Rikers. I will conclude my testimony with several brief recommendations that we believe will strengthen Int. No. 1148. First, however, my comments will highlight the education barriers that we see our school age clients at Rikers Island experience.

Educational Services for Youth Incarcerated on Rikers Island
The best way that the City could help our youth would be to avoid sending them to Rikers, the horrors of which are well documented, and focus on diverting them from the criminal justice system altogether. However, in the interim, the City can do better to ensure that our young people obtain the education that they are entitled to under law.

First, I want to emphasize that we continuously find the Department of Education staff at East River Academy on Rikers Island to be caring and dedicated.  We see them treat our clients with respect and strive to do the very best that they can, particularly given the challenges that educating young people in a jail environment pose. Further, we are encouraged by the various improvements at East River Academy over the past year. These developments include enrollment increases among 18-21 year olds, greater access to vocational education, and targeted resources to address the school reentry challenges our clients face. We also understand that, starting next quarter, students at East River Academy can earn up to five, rather than three and half, credits per quarter. We attribute these improvements to DOE’s District 79 Leadership as well as collaboration from the DOE Adolescent Advisory Board, of which BDS is a member. That said, the following are our six areas of particular concern:

Problem 1: DOC Interference with Education Access
The majority of BDS’ 18-21 year old clients at Rikers are detained in the George Motchan Detention Center (GMDC). Young people at GMDC regularly report to us that they are not transported to school. We understand that corrections officers are required to call for each enrolled student in their housing unit and transport the student to the school floor. However, we often hear of breakdowns in this system. For instance, some clients have reported that the Corrections Officers do not call for students at all or pick up students late in the school day so they miss class time. Others report of frequent, sometimes multiple day, lock-downs, where all students are denied school access. Because DOC is not transparent about the frequency of the lock-downs, we cannot assess the extent that our clients are denied school hours, but we are concerned that it is significant.

We are also appalled that DOC deducts class time from out-of-cell time allotment for adolescents in Enhanced Supervision Housing (ESH), a highly restrictive new form of solitary confinement. This practice discourages youth in the ESH from pursuing their education.

We have also heard that DOC staff discourages clients from attending school due to concerns of violence between inmates during transport or at school. While there is an acknowledged problem of violence at Rikers that must be addressed, particularly at GMDC. DOC interference with the student’s decision to participate in school is neither appropriate nor the right solution to the problem. As an example, I will share a client story from last week:

A is serving a year sentence on Rikers Island. A explained to her BDS social worker that she feels frustrated because she feels as though DOCS is trying to push her out of school. Just last week they brought her paperwork to “sign herself out” of school. She told her social worker that she refused to sign them and continues to tell them that she wants to attend school. Apparently, DOCS has determined that her housing unit has problems with another unit. Because of this “beef” they won’t allow A’s housing unit to move when the other unit’s residents are on the school floor or in the hall. A was called last week for school but hasn’t been called since. She is frustrated as she is extremely motivated to attend school while she is in for the next several months, but will not be able to get an education, even though she has the time, if the guards refuse to take her to the school. A already has 15 credits towards her Regents Diploma.

We also have clients at GMDC who choose not to go to school at all because they are concerned about violence. Notably, our 16- and 17-year-old clients housed at the Robert N. Davoren Complex (RNDC) do not report similar barriers attending school, likely due in large part, to the fact that school attendance is mandatory for this age range.

Solution: The City should call upon DOC and DOE to decentralize the schools, particularly at GMDC, and allow young people who want to learn the opportunity to do so in their units.

Problem 2: Youth at OBCC do not even have a school that they can attend
BDS still has 18-21 year old clients at Otis Bantum Correctional Center (OBCC). While these young adults are school-age and many are interested in preparing for their High School Equivalency or Regents Diploma, East River Academy is not available at OBCC. Recently, several clients housed at OBCC have reported that they want to attend school, but have chosen to remain at OBCC, rather than transfer to GMDC, because of concerns of violence. In several instances, they were explicitly discouraged from transferring to GMDC by DOC staff, but not provided with an educational alternative at OBCC. Our clients should not have to choose between safety and school opportunity.

Solution: DOC should be required to create a school in any facility where youth are held, including OBCC.

Problem 3: Too many of our clients are significantly behind in their reading and math levels and require intervention to succeed in school
Many of our clients struggle in school because their reading and math skills are far below grade level. Reading is the building block of learning, and without it, our clients are at a terrible deficit that fosters recidivism, not opportunity. Likewise, limited math skills contribute to low self-confidence, leading to truancy and school disengagement.  East River Academy can be an opportunity to re-engage students in school and provide them with the building blocks to succeed. In order to break the cycle of incarceration and poverty, our clients need access to interventions that will provide additional and targeted support in reading and math skills. We are hopeful that the data that will be provided per Int. No. 1148 will help inform the need to allocate resources to fund these interventions.

Solution: The City Council should fund intensive, research-based remedial reading and math instruction, including additional staffing such as reading specialist positions at East River Academy, to ensure that all of the youth who attend have the opportunity to improve their basic reading and math skills.

Problem 4: Difficult for youth to accrue credits
The East River Academy can be an extremely positive motivator for our clients incarcerated on Rikers Island. When they learn a new skill or receive a certificate of achievement in school, they are proud of their accomplishments and feel excited to continue their education.

However, too many of our clients leave East River Academy empty handed, without academic credits despite participation in class and coursework. We find that this problem occurs for a variety of reasons. Sometimes transcripts are not appropriately or timely updated with notations of full or partial course completion. Difficulties also arise when students return to the community mid-year, because the community school system uses a two semester system while East River Academy now uses trimesters. The timing of a student’s arrival at East River Academy and return to the community can then dictate whether they will receive credits, even if they accrued a substantial amount of seat time. This is harmful as it confuses and discourages the youth. It also becomes wasted time that could have been spent working towards their high school diploma. Another problem students face is that foreign language and elective courses do not appear to be regularly offered. We hope that the additional resources targeted at reentry support will address this problem.

Solution: The City Council should direct the DOE to create guidelines on mid-year credit accumulation and make it possible for youth at East River Academy to obtain partial credits , even if a young person does not complete a module in its entirety.

Problem 5: Youth are often tracked or encouraged to pursue high school equivalency (HSE) courses, even if they are strong candidates for high school diplomas
BDS’s education team works diligently to place our clients in schools that meet their individual needs to ensure future academic success and end the cycle of poverty and incarceration. This advocacy includes our clients on Rikers Island.  We have helped many students enroll in community schools after finishing their time on Rikers, even those that are over-age and under credited.

While at East River Academy, we find that many of our clients are tracked or encouraged to pursue the HSE, rather than obtain their high school diploma. While we appreciate that HSE may be the appropriate choice for a significant number of students, many of our clients express that they would prefer to pursue their high school diploma. With the credit recovery options in the community, including transfer schools, Young Adult Boroughs Centers and some specialized charter schools, it is possible for an over-age under credited student to earn a Regents Diploma. Further, we find that our clients who are connected with the specialized credit recovery schools upon reentry find supportive school settings that can be critical in helping the youth to forge a new path for herself when she returns to the community.

Solution: The counselors at East River Academy should be encouraged to discuss the benefits of high school diplomas with all enrolled students. The City should collaborate with the newly launched Youth Reentry Network to ensure that all youth at East River Academy have access to reentry services, including support and encouragement to continue their education upon return to their communities.

Problem 6: Guards use pepper spray against our clients in the classroom
BDS staff has received multiple reports of students in East River Academy being sprayed with MK9 pepper spray by guards. Our clients report that the spray spreads through the entire school, disrupting class and movement. School counselors have complained as well. It is our experience that MK9 pepper spray can be harmful and is used far too liberally as a matter of first resort, rather than once all other options for managing a situation have been considered.

Solution: The City Council should ban the use of pepper spray in all DOC facilities, or at the very least, correction staff should not be allowed to use MK9 in East River Academy.  Pepper spray is harmful to the students and staff and not conducive to a healthy school environment that inspires learning.

Int. 1148
BDS supports Int. No. 1148. The bill will go a long way towards improving DOE reporting to provide the Council and the public with important information about the quality and parity of education that youth receive at the East River Academy.

We have several brief suggestions to strengthen the Bill:

Suggestions 1: Specifying Use of Force – In Sections 8-11, the bill requires the DOE to report on incidents of use of force during educational programming. As currently written, the definitions of use of force within a single category vary widely. For example, use of force A can mean a chipped tooth or a ruptured spleen, which are very different injuries. Instead of reporting “use of force A” the DOE should be required to report the injury with greater specificity. See 9-141(b)(8-11).

Suggestion 2: Diploma vs. High School Equivalency Track – We appreciate the request for information regarding achievement of HSE and Regents Diploma in Sections 12-14. We suggest modifying the language in Section 12 to specify whether a Regents Diploma was achieved and whether one of the “safety net” options were utilized. Additionally, the DOE should report the percentage of adolescents and young adults, respectively, on the Regents Diploma vs. HSE track.

Suggestion 3: Attendance and Participation– The information requested regarding enrollment in sections 1-2 and 16-17 will be illuminating. We ask the DOE to also report on attendance of enrolled adolescents and young adults. Sections 18-19 reference to “participation” may be encompassing attendance. If so, we suggest “participating” be clearly defined in the Definitions section.

Suggestion 4: Teacher to student ratio – In addition to data regarding teacher to student ratio, as noted in Section 22, the DOE should be required to report on the absolute number and ratios of special education teachers, paraprofessionals, reading specialists and related service providers.

Suggestion 5: Credit Accrual – We appreciate the request for data about credit accumulation in Section 25. Because credit accrual has historically been a confusing and difficult matter for students at East River Academy, we ask that “sufficient period of time,” be defined. We also ask that the DOE report on the average and median seat time accrued by students who were not present for the “sufficient period of time.”

Suggestion 6: Special Education at East River Academy – Greater transparency regarding special education services is certainly needed. In addition to the information already requested, which should be updated to refer to Special Education Plan (SEP), we ask the DOE to specify the (1) the number of students entering with an IEP, (2) the number of students who received an initial special education evaluation while at East River Academy, (3) the number of students recommended for specific services, including classroom settings and related services, and (4) the classifications of students at East River Academy. We hope this information will help ensure the appropriate resources are provided to meet the needs of special education students at East River Academy.

Conclusion
Thank you for your consideration of my comments. I am grateful to the Council for inviting me to testify about the challenges that my incarcerated youth clients find in accessing educational services on Rikers.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 292) or kfarkas@bds.org.

BDS CIVIL JUSTICE SUPERVISING ATTORNEY BILL BRYAN TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON THE NUISANCE ABATEMENT FAIRNESS ACT

TESTIMONY OF:

Bill Bryan – Supervising Attorney, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Public Safety

Hearing on the Nuisance Abatement Fairness Act

November 2, 2016

My name is Bill Bryan and I am a Supervising Attorney in the Civil Justice Practice at Brooklyn Defender Services (BDS). Thank you for this opportunity to address the New York City Council Committee on Public Safety.  BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, to tens of thousands of clients in Brooklyn every year. We thank the New York City Council for moving to protect New Yorkers from the harms of so-called nuisance abatement and padlock laws. We believe the Nuisance Abatement Fairness Act includes many critical improvements to the City’s Nuisance Abatement Law.

Public Nuisance Abatement, a little-known provision of the NYC Administrative Code, was ostensibly created to assist in the shuttering of illegal gambli